ICE HOLD and Detainers Texas Attorney IMMIGRATION BOND Getting out of Immigration Jail with an Immigration Bond

If your relative was arrested for a criminal offense and is being held in a Texas county jail, all is not lost. If you tried to bond him or her out, you were told by a bondsman or the sheriff’s office that your relative has an “ICE hold”.

What Is An ICE Hold Or ICE Detainer?

A hold placed by Immigration or Customs Enforcement is simply a request by ICE to a law enforcement agency, for it to continue detaining a person in its custody after his normal release date, so that ICE can take over custody.
It should be emphasized that ICE hold is simply a request, and it is up to the law enforcement agency to decide whether to comply with it.
The most important thing for a layperson to understand about ICE detainers is that they are not orders of deportation or removal. Having an ICE hold does not mean that you will automatically be deported. Contact us immediately to see what options may be available to your relative.

An ICE detainer means that an Immigration & Customs Enforcement (ICE) officer has asked the County Sheriff’s Office to hold you for immigration reasons. Instead of being released from jail when the criminal case is over, the person will be switched to “immigration inmate” status. ICE usually then transports the person to the immigration detention facility where the person is processed for deportation.

What Should I Do If My Relative Has An ICE Hold?

Early intervention by an immigration lawyer — before your relative is transferred to immigration detention — can be critical. That is why you should contact an immigration attorney immediately. We provide overnight and emergency services in critical and time-sensitive cases.
For example, an immigration attorney can in some cases negotiate with a county official to ignore the detainer. ICE detainers are optional for law enforcement agencies; they are not mandatory. Also, a lawyer can file a lawsuit against the state for constitutional violations, and can directly contact ICE and request that it lifts a detainer if there is no real basis for deporting the person from the United States. It is within ICE’s prosecutorial discretion to cancel an ICE detainer.

If your family member is picked up by immigration, you should first consult the ICE Detainee Locator at https://locator.ice.gov/ to determine where your family member is being processed or detained by immigration. Your family member will be given a phone call when processed by ICE. If your family member calls you, you should ask them:
(1) where are they going to be detained? If they are being taken to jail, where are they being taken?
(2) do they have an immigration bond already set by ICE?
(3) do they have a criminal bond already set by a criminal Judge?

Next, call our office to consult with an attorney to go over your options in securing your family member’s release from immigration custody.

When you are placed on ICE or immigration hold without bond, you can be detained in Austin Detention Centers, Houston Contract Detention Facility at Export Plaza (CDF or CCA) for days or weeks without bond set or a bond hearing scheduled. You may also be detained in County Criminal Court or District Court with an ICE hold. However, when our immigration attorneys get involved, the process will start moving and the detainee’s rights will be protected.
We fight for clients in ICE detention centers and jails in Austin and Houston, and throughout Texas. Our clients include both documented and undocumented immigrants who have been placed on ICE hold and classified as inadmissible (deportable/removable). We can also help you begin the process to apply for Cancellation of Removal.

An ICE hold does not mean that a person can be detained indefinitely by ICE. Obtaining a release from the detention facility and prevailing in canceling removal is a multi-step process, but we know the proper channels, procedure, and strategy necessary to achieve your goals.

Contact us Now

Call us now at 512-710-5652. We accept clients that need representation before the Houston Immigration Court, the San Antonio Immigration Court, Dallas Immigration Court, the El Paso Immigration Court, the Harlingen Immigration Court, and the Houston Asylum Office. We accept clients from throughout Texas, including Dallas, Fort Worth, Irving, Garland, Coppell, Carrollton, Richardson, Houston, San Antonio, Austin, Midland, El Paso, Beaumont, Waco, San Angelo, and Lubbock.

Should I Post Bond For A Person With An ICE Hold?

Should I Post Bond For A Person With An ICE Hold?
In some cases, a person can be issued a bond amount by a county judge, even though there he has an ICE detainer. Whether to post the bond is a very tough question that should be decided on a case-by-case basis with the help of a deportation lawyer.
When an ICE hold is in place, an inmate will be held in jail for ICE to come pick them up, even if the bond is paid. It is usually not advisable to make the bond for someone with an ICE hold because the person won’t be released from custody and the money will be lost. Austin detainees are initially transported by ICE to San Antonio. The person may not be returned to Austin or Houston for upcoming court dates or to resolve the criminal case.

How do I get an immigration bond?

An individual taken into ICE custody will be processed and a determination will be made by ICE officials at the outset of custody regarding bond. At the beginning of custody, ICE has the ability to set bond to the individual. If ICE sets a bond amount in which the individual is able to pay, we recommend paying that bond as soon as realistically possible. If ICE sets a bond, but the amount is too high to pay, that individual would have an opportunity to seek a bond reduction with an immigration judge. Also, should ICE decline to set a bond at the beginning of custody, an individual may seek a bond redetermination hearing with an immigration judge and argue to the judge that he or she merits release from custody upon payment of a reasonable bond. In a bond redetermination hearing, it is the burden of the individual applying for bond to prove to the immigration judge that he or she does not pose a danger to the community; specifically persons and property and that he or she does not pose a flight risk in that if released on bond, he or she would attend any and all hearings outside of custody.

How high are immigration bonds?

Immigration bonds are at minimum of $1,500. There is no maximum amount of bond an immigration judge may set. Depending on the facts and circumstances of the case at hand, an individual in custody should expect to pay anywhere between $1,500 and $25,000 for bond.

Do I need an attorney to get an immigration bond?

An attorney is not required to obtain an immigration bond. However, we strongly recommend that an individual in need of assistance in obtaining an immigration bond go through an immigration attorney to request an immigration bond either through ICE or through the immigration judge.

Can I lower the immigration bond amount?

If given a bond by ICE, you may lower the immigration bond amount through a bond redetermination hearing in front of an immigration judge. However, please be aware that an immigration judge is not required to lower a bond amount already set by ICE and may raise the bond or take away the bond. If an immigration judge sets a bond amount but you wish that the amount is lowered, you are limited only to filing an appeal with the Board of Immigration Appeals, a process, which will take other 4-6 months to receive a decision.

Can You Be Deported For A DUI Or DWI Conviction In Texas?

Non-citizens in Texas know that encounters with law enforcement can be dangerous because criminal charges often carry the possible risk of deportation. If you’re an immigrant living in Texas and you’ve been arrested on suspicion of DWI, know that while deportation is a possibility, it isn’t a sure thing. Your previous criminal history, prior convictions, and the circumstances of your arrest will determine whether you will face immigration roadblocks or deportation in the future.
If you’ve been arrested, don’t panic. Contact Austin immigration attorney Elena Vlady to discuss your rights and your legal options. We will work hard to minimize the impact the charges will have on your life. Schedule a confidential consultation with us today.

DWI Crimes In Texas Involving Possible Deportation

A person’s first DWI arrest in Texas is generally a Class B misdemeanor when there are no aggravating factors involved. A second DWI arrest and first arrests involving blood alcohol concentrations (BACs) of 0.15 or more are a Class A misdemeanor. The U.S. Citizenship and Immigration Services (USCIS) generally lets green card-holders remain in the United States after misdemeanor convictions if they satisfy all requirements imposed by the court.
A DWI arrest resulting in felony charges becomes a possible deportation risk for immigrants because felony offenses are considered crimes of moral turpitude. DWI is a felony in Texas when it is an alleged offender’s third or subsequent DWI offense. A DWI is also a state jail felony when an alleged offender had a passenger who was younger than 15 years of age.
Another common reason for felony DWI charges is drunk driving accidents. A person who causes an accident resulting in serious bodily injury will be charged with the third-degree felony of intoxication assault while an immigrant who causes a fatal DWI accident will be charged with second-degree felony of intoxication manslaughter.
DWI offenses stemming from illegal or prescription drugs are also crimes of moral turpitude. So-called “drugged driving” cases can be far more difficult for prosecutors to obtain convictions because proof of intoxication often comes in the form of urine tests, which may indicate drugs in a person’s system but do not necessarily demonstrate the drugs were active at the time of the alleged offense.

Based on the above, a green card holder could be subject to deportation after a DWI offense if they:
• Were driving on a revoked or suspended license
• The DWI offense was drug-related
• There was a child 15 years of age or younger in the vehicle
• The offense was the driver’s 3rdDWI offense
• The accused was previously convicted of a crime of “moral turpitude”
• The DWI resulted in bodily injury or death

Can a Permanent Resident Be Deported for a DWI?

Permanent residents are typically not deported for a DWI. However, immigration consequences of DWI can still have significant implications for someone who is here with a green card, and others who are here illegally.
As a non-citizen, you always face the risk of deportation. This threat is greatest if you are convicted of a “deportable crime.” Offenses of this nature include:
• Moral turpitude crimes
• Aggravated felonies
• Theft, forgery, or violent offenses punishable by at least one year in prison
• Guns, illicit drugs, humans, or destructive device trafficking
• Fraud, tax evasion, or money laundering with losses greater than $10,000
• Sexual abuse of a minor, child pornography rape, murder, or kidnapping
In most circumstances, a DWI is not a deportable offense for someone who is in the U.S. lawfully. However, a conviction for driving while intoxicated can make it difficult to become a citizen. To become a citizen, you must be able to prove good moral character for the five years prior to your application. A DWI during that time complicates the process.
Does a DWI Affect a Green Card Application?
Yes, a DWI conviction can impact your ability to become a permanent resident, though this is not automatic. A DWI does not automatically make you ineligible for a green card. But it will come up during the application process and could support a denial of your application.
The U.S. Citizenship and Immigration Services (USCIS) considers alcoholism and alcohol-use disorders to be physical and/or mental. These disorders can make you ineligible for a green card if there is evidence you exhibit harmful behavior associated with that disorder which has or is likely to pose a threat to the safety and property of others. During the green card application process, you must go through a medical evaluation. If this uncovers alcoholism, the DWI may be used to show you have exhibited related harmful behavior. You may be deemed inadmissible on health-related grounds.
You also may be denied permanent residency if a DWI becomes a crime of moral turpitude. Typically, one DWI conviction is not a crime involving such behavior. However, if you are facing a second or subsequent drunk driving charge, or you are charged with a DWI while driving on a suspended or revoked license, then this may amount to a crime of moral turpitude.
Can an Illegal Immigrant Get Deported for DWI?
Yes, if you are an undocumented immigrant living in the U.S. and you are arrested for a DWI, you may be deported. As an undocumented immigrant, your status can lead to deportation at any time. A criminal arrest, charges, or a conviction may put U.S. Immigration and Customs Enforcement (ICE) on notice that you are in the U.S., and lead them to discover where you live.
Federal authorities have some discretion on when they choose to bring deportation proceedings against undocumented individuals. They historically prioritize more serious offenses or repeat offenders. The more serious the conviction, the more likely it is to trigger deportation proceedings. Minor offenses are less likely to make federal officials act against an undocumented immigrant. However, ICE has been aggressive in beginning deportation proceedings against all undocumented immigrants.
Also, bear in mind that Travis, Williamson and Harris County cooperate with ICE and comply with all ICE detainer requests. If you are arrested for a DWI in Harris County, Travis county, or Williamson county, local law enforcement officials will inquire about your immigration status. If you are undocumented, ICE will likely be notified, and you may be transferred into their custody. You still have a right to an attorney, and you or a family member should contact us as soon as possible.

Can a DACA Resident Be Deported for a DWI?

Many young immigrants in the U.S. who were brought here as infants have legal status through the Deferred Action for Childhood Arrivals (DACA). This enables many young adults to work and go to school in the U.S. lawfully. However, a DWI conviction could lead to a person’s DACA status being revoked, which in turn can lead to deportation proceedings.

Will the police ask about my immigration status?

Maybe. You should NEVER answer questions about your immigration status unless it is someone you know or trust (like your lawyer). This includes questions about how long you have been in the United States, how you came to the United States, and whether you have “papers.” In response, you should calmly say that you do not wish to answer any of those questions. It is none of their business. Your immigration attorney can decide when and how to best answer any questions about your immigration status. If police officers or anyone in the jail asks you about your immigration status, DO NOT ANSWER.

ICE DETAINEE TRANSFERS AND IMMIGRATION JUDGES: FORUM-SHOPPING TACTICS IN REMOVAL PROCEEDINGS

U.S. immigration policy and ICE tactics have been greatly scrutinized over the past year. While many criticisms focus on border policy and the conditions of detention, scholars have also raised concerns over ICE’s unfettered discretion to transfer detainees to different detention centers. Not only may ICE transfer detainees anywhere in the country, ICE has gradually expanded this practice. Now, on average, every detainee is transferred at least once each year. ICE, however, is not the sole point of criticism for immigration advocates. Recently, Immigration Judges’ decisions have been scrutinized for their lack of consistency. Wide variations in IJ decision-making indicate that the judge assigned to a case heavily influences the likelihood of a favorable outcome to ICE. The intersection of these two distinct problems–immigration detainee transfers and inconsistent IJ decisions–effectively allows ICE to forum shop by transferring detainees to detention centers with IJs who are likely to issue rulings favorable to ICE. This amounts to a crisis of justice, as ICE may transform facially neutral proceedings into judicial rubber stamping for the case outcomes ICE desires.

A. STATUTORY AUTHORITIES FOR DETENTION

Three classes of aliens are subject to immigration detention: (1) arriving aliens, (2) noncitizens subject to possible removal, and (3) noncitizens ordered removed but awaiting deportation.²⁴ The detention of each class is governed by separate statutory provisions interpreted by the agency and courts.²⁵

1. Arriving Aliens.

8 U.S.C. § 1225 provides inspection and detention standards for all aliens “present in the United States who [have] not been admitted or who arrive [] in the United States.”²⁶ The term “arriving aliens” is a misnomer, because this class includes not only aliens who present themselves for admission “at a designated port of arrival,” but also aliens who are already present in the country, provided that they meet the other requirements of the statute.²⁷ All arriving aliens are subject to inspection to determine whether they are admissible to the United States.²⁸

Asylum seekers constitute a substantial portion of the arriving aliens subject to § 1225‘s provisions.²⁹ If an arriving alien applies *287 for asylum or claims a fear of persecution if not admitted, then an asylum officer must assess the alien’s application and determine whether the alien’s fear of persecution is credible.³⁰ These aliens are subject to mandatory detention pending such a determination.³¹ If the asylum officer denies the application or finds the fear of persecution not credible, then the alien is subject to further detention pending removal.³²

2. Noncitizens Subject to Removal.

Noncitizens are subject to removal based on one of two provisions. First, under § 1226(a), the United States Attorney General may generally issue warrants for any noncitizen to determine whether that noncitizen is subject to removal.³³ While noncitizens may be detained until an immigration court determines that they should be removed, their detention is discretionary because an IJ may release them on bond or conditional parole.³⁴ However, the Attorney General may revoke a bond or other form of release at any time.³⁵

Second, certain criminal noncitizen aliens are subject to removal under § 1226(c).³⁶ Unlike detainees under § 1226(a), aliens arrested under § 1226(c) are subject to mandatory detention pending determination of their removal.³⁷ Only certain crimes warrant detention, and § 1226(c) incorporates these crimes by reference to *288 other statutes.³⁸ Those crimes include various controlled substance crimes,³⁹ possession or sale of a firearm,⁴⁰ terrorist activities,⁴¹ multiple crimes with an aggregate sentence of more than five years,⁴² aggravated felonies,⁴³ and “crimes of moral turpitude” with a sentence of one year or longer.⁴⁴ Once a noncitizen is released from criminal incarceration based on a conviction for one of these crimes, ICE may subject the noncitizen to civil detention pursuant to § 1226(c) at any time.⁴⁵ Once noncitizens are placed in immigration detention under § 1226(c), there is no statutory provision authorizing their release on bond.

3. Noncitizens Ordered Removed.

Once an immigration court has ordered a noncitizen’s removal, the Attorney General has ninety days to deport the noncitizen.⁴⁶ Noncitizens are subject to mandatory detention during this removal period.⁴⁷ If a noncitizen is not deported during the ninety-day removal period, the Attorney General must release the noncitizen *289 from detention.⁴⁸ However, § 1231(a) also allows for discretionary detention of criminal noncitizens⁴⁹ beyond the removal period.⁵⁰

4. Statutory Overview.

To illustrate the operation of §§ 1225, 1226, and 1231, assume that X is an alien who arrives at the United States border and claims a fear of persecution if denied entry into the country. Customs and Border Patrol (CBP) of the Department of Homeland Security (DHS) subjects X to mandatory detention until an immigration court decides whether X’s claimed fear is credible. CBP and ICE detain X for one month before an immigration court grants X asylum.⁵¹ X is released and decides to settle in Georgia.

Later, X is arrested and convicted in a Georgia state court for possession of one gram of cocaine and is sentenced to the statutory minimum one-year incarceration.⁵² Upon X’s release from a Georgia prison, the Attorney General issues a warrant for X’s arrest, as a criminal noncitizen who is subject to removal pursuant to § 1226(c). After X’s arrest, ICE may detain X under § 1226(c) until an immigration court determines whether to remove X. ICE detains X for six months under § 1226(c) before X appears in an immigration court for removal proceedings.⁵³ Totaling X’s detention times under §§ 1225 and 1226(c), X has been detained by ICE for seven months.

The immigration court decides that X will, in fact, be removed. ICE then continues to detain X for the ninety-day removal period under §1231. The ninety-day removal period expires, and X has not *290 been deported. Nevertheless, because X committed a requisite crime under §1226(c)— possession of a controlled substance–ICE continues to detain X. ICE finally deports X six months after the immigration court ordered X’s removal.⁵⁴ X’s total civil detention time since arriving in the United States was 13 months–exceeding X’s one-year criminal prison sentence by one month.⁵⁵

B. PREVALENCE OF DETAINEE TRANSFERS

ICE uses three types of facilities to house immigrant detainees. First, Service Processing Centers (SPCs) are owned by ICE but operated by private contractors.⁵⁶ Second, Contract Detention Facilities (CDFs) are both owned and operated by private contractors.⁵⁷ Third, ICE has Intergovernmental Agency Service Agreements (IGSAs) with certain local jails to house detainees.⁵⁸ All in all, ICE maintains over 300 detention facilities to house over 30,000 detainees per day.⁵⁹ 50% of detainees are housed in 240 IGSAs with county prisoners and other non-immigration inmates.⁶⁰ In 2016, ICE spent $6.1 billion on immigration detention.⁶¹

Under § 1231(g)(1), the Attorney General and ICE determine where to house each detainee in their custody.⁶² Courts have held that this statutory power further authorizes ICE (through the *291 Attorney General) to transfer detainees as the agency sees fit.⁶³ICE has regularly utilized this authority to move detainees from one detention facility to another; the number of annual detainee transfers doubled from 122,783 in 2003 to 261,941 in 2007.⁶⁴ For instance, in 2007, it is estimated that ICE transferred eighty-four percent of all immigration detainees to different facilities.⁶⁵

In response to highly publicized studies criticizing this increasing rate of detainee transfers,⁶⁶ICE altered its policy in 2012 by limiting the transfer of detainees who had family or retained counsel near their location of detention or who had open proceedings in immigration court at their current detention center.⁶⁷ But so long as one of these factors is not present, ICE may transfer a detainee for any number of reasons, including preventing the overcrowding of a facility, ensuring the safety of a detainee and ICE personnel, or removing detainees from a substandard facility.⁶⁸ While the reform was initially praised by critics,⁶⁹ the number of transfers has not declined as expected, suggesting that ICE has derogated from its own standards. In 2015, for instance, ICE recorded 374,059 detainee transfers⁷⁰–nearly a 50% increase from the 2008 total that motivated criticism and ICE’s resulting policy shift.⁷¹ Transfer of detainees thus remains a markedly widespread procedure, as, on *292 average, every ICE detainee is transferred at some point during the year.⁷²

C. OUTCOME-DETERMINATIVE CONDITIONS OF DETENTION

While the bases for ICE detention and transfers present important problems, the actual conditions of immigration detention are the most unsettling aspects of the detention system. These conditions not only offend notions of fairness, but also often affect the outcome of immigration court decisions on the merits.

ICE detainees may be housed in detention centers in remote, rural areas.⁷³ For example, Stewart Detention Center in Lumpkin, Georgia is the second largest immigration detention facility in the country, maintaining 1,752 beds.⁷⁴ Meanwhile, Lumpkin, Georgia has an estimated total population of only 2,741 according to the 2010 U.S. Census.⁷⁵ This tendency to house detainees in rural areas has several deleterious effects on detainees.

First, the remoteness of the detention locations severely hinders detainees’ access to counsel. Fewer attorneys are present in these isolated regions, and thus detainees are far less likely to retain a lawyer to represent them in immigration proceedings.⁷⁶ Inability to secure counsel also seems to have a significant effect on the outcome of immigration cases themselves. For example, of the deportation proceedings that began in fiscal year (FY) 2016 and have now concluded, 41% of immigrants who were represented by counsel were ordered removed,⁷⁷ while by contrast, 89% of pro se *293 immigrants were ordered removed.⁷⁸ Immigrants who are represented by lawyers who specialize in immigration proceedings are even more likely to secure relief.⁷⁹

Second, isolated detention locations separate detainees from their families and support networks. As noted above, on average, every detainee is transferred at some point in a given year.⁸⁰ When detainees are transferred, they are more likely to be moved from states with high-density immigrant populations to more sparsely populated states.⁸¹ Thus, more likely than not, detainees will be housed in locations far from their homes, which makes it difficult for family members to visit.⁸² This toxic combination of being placed in legal limbo and being isolated from supportive personal relationships is psychologically detrimental for many detainees.⁸³ These emotional factors can directly influence the outcome of legal proceedings, as feelings of desperation motivate some detainees to *294 abandon legitimate claims in order to secure a more expedient release.⁸⁴

Third, the location of detention can affect the substantive law applied during immigration proceedings. This is especially true for criminal aliens because the U.S. Courts of Appeals interpret the severity of certain felonies differently, affecting whether an alien’s crimes are sufficient to warrant § 1226(c) detention.⁸⁵ Thus, a detainee could face an increased likelihood of deportation based solely upon a transfer to a different jurisdiction that more harshly interprets the detainee’s criminal history.⁸⁶

In response to these problems, ICE asserts that its tendency to locate immigration detention facilities in sparsely populated areas serves important policy interests. Specifically, ICE has cited detention costs, proximity to airports, and the availability of employees as rationales that influence these choices.⁸⁷ While ICE may offer facially legitimate reasons for its detention centers’ locations, the detrimental effects on detainees nonetheless continue.

III. IMMIGRATION JUDGES AND ADJUDICATORY INCONSISTENCY

Immigration Judges (IJs) are the principal administrative adjudicators for both bond and merit decisions in the immigration courts. Like all judges, the IJ has a substantial effect on the outcome of legal proceedings. The standards governing IJ decisions, however, are unique and distinguishable from those of other federal judges. This section examines (1) the statutory authorities governing IJs, (2) the resulting variations that prevail in IJ decisions, and (3) the factors that predominantly influence IJs in reaching their decisions.

*295 A. THE SCANT AUTHORITIES GOVERNING IMMIGRATION JUDGES

Few authorities provide direct guidance regarding IJs. 8 U.S.C. § 1101(b)(4) defines an “immigration judge” as “an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under §1229a of this title.”⁸⁸ It is important to note several details in this initial definition. First, IJs serve at the pleasure of the Attorney General and do not receive lifetime appointments.⁸⁹ As a result, “IJs arguably have less structural independence than federal judges and potentially less independence than administrative law judges.”⁹⁰ Second, the Executive Office of Immigration Review (EOIR) directly oversees IJs for the Attorney General.⁹¹ Although the statute itself does not outline specific hiring criteria for IJs, the EOIR currently requires only that IJs have seven years of prior legal experience.⁹²

Among their duties, IJs must “administer oaths, receive evidence, and interrogate, examine, and cross-examine aliens and any witnesses” at the court to which they are assigned.⁹³ IJs are provided little guidance as to how they should “exercise their independent judgment and discretion”⁹⁴ in carrying out these duties, but agency policy documents give some structure. For example, the Immigration Judge Benchbook lists several factors that IJs may consider in deciding whether to grant bond and the *296 amount of bond to set.⁹⁵ These factors include the immigrant’s length of residence, family ties to the United States, employment history, prior evasions of ICE custody, and criminal record.⁹⁶ IJ decisions are also reviewable by the Board of Immigration Appeals.⁹⁷

B. THE WIDE VARIATION IN IMMIGRATION CASE OUTCOMES

IJ decisions have recently faced heavy criticism for their inconsistency across and within jurisdictions.⁹⁸ While much of the recent research focuses on the wide variation of results in asylum cases,⁹⁹ some research now implicates other types of IJ decisions as well.¹⁰⁰ The results of these studies demonstrate that there is an increasingly wide variation in the outcome of immigration court decisions.¹⁰¹ Such inconsistency in adjudication raises important questions about the fairness of the process afforded immigrants in immigration courts.

Asylum cases are classic examples of such inconsistency because the prevalence of variability can be demonstrated at multiple levels of abstraction. For example, the rate of granting asylum to immigrants from countries that produce large numbers of asylum seekers ranges from 52% in New York immigration courts to only 12% in Atlanta immigration courts.¹⁰² When analysis is restricted *297 to a single nationality, the results are even more pronounced.¹⁰³ For example, “a Chinese asylum seeker unlucky enough to have her case heard before the Atlanta Immigration Court had a 7% chance of success on her asylum claim, as compared to 47% nationwide.”¹⁰⁴ However, inconsistency is prevalent within immigration courts as well, as a survey of seventy-four IJs from the five immigration courts that heard the most asylum cases revealed that “32% [of those IJs] decided asylum cases … at rates significantly discrepant from their court’s average grant rate.”¹⁰⁵

These wide variations are not limited to asylum decisions. Emily Ryo analyzed bond decisions for detainees held for longer than six months in immigration courts in the Central District of California and found that some judges granted bond in 75% percent of cases, while others granted bond in only 22% of cases.¹⁰⁶ Additionally, when IJs granted bond, the amounts varied significantly–$10,667 to $80,500–and were well above the statutory minimum bond amount of $1,500.¹⁰⁷

IJ decisions also vary widely concerning the outcomes of removal proceedings. For example, of removal cases that began in FY 2016 and have reached an outcome, the San Francisco Immigration Court ordered removal for 47% of immigrants.¹⁰⁸ By contrast, the Atlanta Immigration Court, which decided a similar number of cases, *298 ordered removal for 87% of immigrants.¹⁰⁹ Of all removal cases in the United States during the same period, immigration courts ordered removal for 69% of immigrants.¹¹⁰ There are thus wide variations in IJs’ decisions regarding asylum, and bonds, and removal.¹¹¹ Such statistics indicate a startling conclusion: the location of detention and the individual IJ who decides an immigrant’s case may substantially influence the outcome of the detainee’s case.

C. NON-MERITORIOUS FACTORS INFLUENCING IMMIGRATION JUDGES’ DECISIONS

While it is relatively easy to demonstrate that IJs’ decisions vary widely, it is much more difficult to adequately explain why the variation occurs. Shedding some light on this more difficult inquiry are multiple studies which show that IJs’ personal tendencies and predispositions on certain social and legal issues strongly influence the decisions they reach in immigration cases.¹¹²

ICE provides IJs with very little guidance regarding the appropriate factors to consider in reaching decisions, so IJs enjoy broad discretion in their judgments¹¹³ and often disproportionately consider a small number of issues in ruling on cases. For example, in deciding bond requests, the IJ Benchbook instructs IJs to consider a number of factors, including criminal history, family ties to the United States, and employment history.¹¹⁴ Nevertheless, bivariate analysis of the relation of these factors to the outcome of bond hearings shows that “[t]he only legally relevant factors *299 significantly related to bond grant/deny decisions are those pertaining to the detainees’ criminal history.”¹¹⁵ Thus, it is unclear whether and to what extent ICE’s promulgated standards for deciding cases influence IJ decisions.

Statistical analysis of IJs’ asylum decisions indicate that many personal characteristics of IJs might directly influence their decisions. For example, an IJ’s prior work experience has a significant effect on asylum grant rates.¹¹⁶ Specifically, an IJ’s prior positions in the government, positions with the Department of Homeland Security, and military experience all decrease an IJ’s likelihood of granting asylum by at least seven percentage points.¹¹⁷ On the other hand, IJs who have had previous careers with NGOs, academia, or private practice are at least 6% more likely to grant asylum.¹¹⁸ An IJ’s sex also exerts a substantial influence on asylum grant rates, as women grant asylum in 53.8% of cases, while men grant asylum in only 37.3% of cases.¹¹⁹

More nuanced factors can also influence an individual IJ’s decision-making. For example, immigrants who are detained during asylum proceedings “are [twelve] to [fifteen] percentage points less likely to receive relief than are those who have never been detained.”¹²⁰ Even economic trends play a role in decisions, as increases in the national unemployment rate correspond to decreases in asylum grant rates by as much as eight percentage points.¹²¹

Finally, systemic issues in immigration courts play a role in the variation of decision rates. IJs face a severe backlog of cases, as “IJs typically handle sixty-nine cases a week and must dispose of twenty-seven cases per week.”¹²² Currently, there are 733,365 pending immigration cases nationwide that must be adjudicated by fewer than 300 IJs.¹²³ This number is up from 516,031 cases in 2016 *300 and 174,935 in 2007.¹²⁴ In handling this massive case backlog, IJs lack the staff support that is typical of other federal judges, as most immigration courts go without bailiffs, clerks, and assistants.¹²⁵ Thus, the individualized factors listed above may play an even greater influence in cases, as IJs must look to dispose of matters quickly in order to stay up to date with their incessant workload. Also, because IJs are not appointed for life and are removable by the Attorney General, they may be less likely to grant release for certain detainees at the risk of the detainee’s recidivism or commission of other harm.¹²⁶

The critical takeaway from these tendencies is that IJ decisions may be influenced by a plethora of factors, many of which are entirely unrelated to the merits of the immigrants’ cases. A normative stance on these issues is outside the scope of this Note. Rather, this Note observes that an immigration detainee’s case may be more likely to be determined by external factors rather than the actual merits of the claim.

IV. ICE JUDGE-SHOPPING TACTICS

Immigration detainee transfers, detention conditions, and variability in IJ decision-making all raise independent causes for concern about the current immigration court system. Taken together, however, these factors may combine to present a true crisis of justice. In particular, current legal standards make it possible for ICE to use detainee transfers in the service of intentional judge-shopping in order to secure favorable bond or case outcomes. In this Part, I explain this potential for abuse, demonstrate possible evidence of its occurrence, and argue that it offends notions of fundamental justice and legal ethics.

*301 A. POTENTIAL FOR ICE TO ABUSE THE DETENTION FRAMEWORK

As outlined above, ICE has nearly unlimited authority to transfer detainees to different facilities in the United States.¹²⁷ The frequency of transfers has recently reached an all-time high,¹²⁸ and, on average, every detainee is transferred at least once in a given year.¹²⁹ Additionally, because IJs only hear cases in the immigration courts to which they are assigned, ICE effectively determines which IJ will preside over a detainee’s case by transferring the detainee to a location within the IJ’s jurisdiction.

Normally, this arrangement would not be problematic, as a case’s outcome would ideally remain relatively consistent since all IJs apply the same body of law. As indicated by the wide variation in IJ decisions explained above, however, the individual characteristics and background of the IJ deciding a detainee’s case can be outcome-determinative.¹³⁰ This presents the potential for ICE to abuse such variation, as moving a detainee to a certain facility not only determines who will hear the case, but also how the case will likely be decided.

As others have already argued, the transfer of detainees to detention facilities in rural areas effectively prevents them from accessing counsel and subjects them to prolonged isolation from their families and networks of support.¹³¹ Together, these *302 phenomena greatly reduce the likelihood that a detainee can obtain relief from an immigration court.¹³² Therefore, ICE may use the transfer of detainees to particular locations to reduce a detainee’s ability to secure a favorable outcome. When considered in conjunction with well-documented IJ tendencies, as well as the varying interpretations of the immigration consequences of criminal statutes among the Courts of Appeals,¹³³ a detainee’s prospects of success may be entirely changed solely by moving that detainee to a different facility.

B. POSSIBLE EVIDENCE OF ICE FORUM-SHOPPING TACTICS

While this interrelatedness shows how ICE agents could take advantage of the system, proving actual malicious intent is quite difficult. ICE has provided facially neutral policy justifications for its decisions to transfer detainees and maintain detention facilities in remote areas.¹³⁴ Nonetheless, recent cases shed some light on ICE’s other possible motivations.

By transferring detainees, ICE can avoid unfavorable IJ determinations made at the detention center of departure. For example, in Lima-Diaz, described above,¹³⁵ an IJ at Stewart Detention Center granted bond, and the detainee was released upon payment.¹³⁶ However, ICE re-apprehended the detainee a few months later without appealing the bond to the Board of Immigration Appeals.¹³⁷ICE then detained the immigrant at a different facility, where the IJ denied bond.¹³⁸ Thus, even after an IJ grants relief to a detainee, ICE can circumvent the result by transferring the detainee to a different facility where another IJ may reach a different judgment.¹³⁹ICE can even foreclose the *303 possibility of relief entirely. For example, in Brito-Ramirez v. Kelly,¹⁴⁰ an IJ granted a bond redetermination hearing to an immigrant detained in Charlotte, North Carolina.¹⁴¹ The day after the IJ granted the hearing, ICE transferred the detainee to a different detention center in Charleston, South Carolina.¹⁴² The IJ at the Charlotte facility then denied bond based solely upon the detainee’s failure to attend the hearing in Charlotte.¹⁴³

By transferring detainees, ICE also prevents detainees from utilizing retained counsel to argue for relief on their behalf. For example, in Maling v. Johnson,¹⁴⁴ the detainee retained counsel while detained in California to challenge his order of removal.¹⁴⁵ICE then transferred the detainee to Alabama, and the detainee was unable to adequately communicate with counsel representing him in California.¹⁴⁶ICE can also transfer detainees to take advantage of favorable substantive law in a jurisdiction. In Ballesteros v. Ashcroft,¹⁴⁷ the immigrant was arrested in Idaho for possession of a controlled substance.¹⁴⁸ This crime would not be sufficient for removal under Ninth Circuit law if the immigrant were detained in Idaho, but ICE then transferred him to a detention center in Colorado.¹⁴⁹ There, the IJ applied Tenth Circuit law, under which the detainee’s prior drug conviction was sufficient to warrant § 1226(c) removal.¹⁵⁰ICE can even interfere with proceedings in federal district courts by transferring detainees. For instance, ICE has transferred detainees who attempted to file habeas petitions in federal court from their original place of detention to more rural *304 areas in other jurisdictions.¹⁵¹ Some federal courts have even recognized such practices as attempts by ICE to forum-shop.¹⁵²

These examples illustrate the different ways in which ICE can transfer detainees to obtain the outcomes it prefers in immigration proceedings. While they do not conclusively establish that ICE has intended to manipulate the transfer system, these examples show how such a strategy might be employed.

C. OFFENDING NOTIONS OF JUSTICE

ICE judge shopping offends notions of arbitral neutrality, fundamental justice, and legal ethics. Specifically, judge shopping enables ICE, the party that wields disproportionate power in a proceeding, to use that power to secure a favorable outcome solely by exerting control over the detainee, the weaker party. While many of these criticisms may apply to forum shopping generally, the power relationship between ICE and immigration detainees makes this a particularly egregious example of such a practice.

“Statistical disparities–especially when there is some expectation of similarity, such as when courts are construing the same law or constitution– embarrass the courts.”¹⁵³ A neutral arbitrator is central to the United States’ conception of the rule of law as a blind application of the norms created by legislatures and courts.¹⁵⁴ By permitting one party to circumvent this norm and *305 secure an advantage that is unrelated to the merits of the dispute, we remove law from the realm of detached judgments and subject it to a reality of disproportionate power dynamics. ICE forum shopping is an extreme instantiation of this concept because it permits the powerful party not only to take advantage of a forum, but also to manufacture a forum by forcibly moving an opposing party to a different location.

ICE’s use of forum-shopping tactics also implicates the ICE attorneys who prosecute removal cases in which these tactics are employed. As representatives of the government, criminal prosecutors have a responsibility to temper zealous advocacy and seek justice in pursuing a case.¹⁵⁵ICE attorneys, as representatives for the government in immigration proceedings, should be seen as sharing this responsibility in prosecuting removal cases.¹⁵⁶ICE attorneys and other agency representatives exercise “broad discretion” in deciding whether and how to prosecute a removal case.¹⁵⁷ In doing so, ICE attorneys should recognize that the “[d]iscretion in the enforcement of immigration law embraces immediate human concerns.”¹⁵⁸

ICE’s duty to consider the interests of justice in deciding whether to pursue an immigrant’s removal should correspondingly extend to its decisions on which tactics to employ in the removal process. ICE’s increasingly common use of forum-shopping tactics to take advantage of inconsistencies in IJ decision-making would constitute a departure from that duty. “While our adversarial system may *306 permit such advocacy by private parties,”¹⁵⁹ the use of forum-shopping by government agents departs from the goal of seeking justice. In an area that unavoidably “embraces immediate human concerns,”¹⁶⁰ advantage-taking by the party which wields nearly plenary power should be viewed with a skeptical eye and condemned when it contradicts that party’s fundamental ethical duty.

V. CONCLUSION

ICE has the authority to transfer immigration detainees to any facility, with few checks on that power. The location of detention, especially in isolated, rural areas, has deleterious and outcome-determinative effects on a detainee’s ability to litigate a removal case. Additionally, there is a wide variation in IJ decision-making in removal cases. Because the location of detention determines which IJ will hear a detainee’s case, ICE can transfer detainees to facilities with IJs who are statistically more likely to grant ICE’s preferred form of relief. Thus, ICE effectively has the ability to forum-shop by transferring detainees to take advantage of inconsistent IJ decisions and secure favorable outcomes in immigration cases. This ability to essentially determine the result of a case independent of the merits departs from ICE’s duty to pursue justice in removal cases.

While the possibility of ICE’s forum-shopping in prosecuting removal cases constitutes a serious problem, instituting solutions to that problem presents an even greater one. Possibilities might include granting ICE attorneys the authority to control all aspects of a removal case¹⁶¹ or increasing ICE attorneys’ ability to screen and decline to prosecute cases.¹⁶² These options, however, merely provide an additional check on forum-shopping; they do not foreclose use of the tactic. Because the problem of ICE’s forum- *307 shopping implicates two of the most fundamental aspects of federal immigration policy–detainee transfers and non-lifetime IJ appointments– entirely preventing ICE from forum shopping would require a comprehensive overhaul of both of these systems.

Unfortunately, such an intensive change in immigration policy is unlikely. Nonetheless, increasing awareness, especially among the primary actors in the immigration system, including IJs themselves, of ICE’s forum-shopping tactics and the outcome-determinative effect they have on detainees’ cases is a step in the right direction. In particular, non-ICE actors–such as district court judges who hear detainees’ habeas cases and immigration attorneys who defend detainees–should take note of this problem and emphasize that such departures from justice must never be permitted in a system that “can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.”¹⁶³