REPRESENTING DETAINED APPLICANTS

SPECIAL CONSIDERATIONS WHEN

REPRESENTING DETAINED

APPLICANTS

FOR ASYLUM, WITHHOLDING OF REMOVAL

AND RELIEF UNDER THE CONVENTION

AGAINST TORTURE

A Supplement to NIJC’s Basic Procedural Manual for

Asylum Representation

August 2019

224 S Michigan Ave

Suite 600

Chicago, Illinois 60604

Phone 312-660-1370

Fax 312-660-1505

www.immigrantjustice.org

National Immigrant Justice Center August 2019

2019 Heartland Alliance for Human Needs & Human Rights

National Immigrant Justice Center

Please Note:

This document is a brief guide to asylum practice in the detained context and is a

supplement to NIJC’s Basic Procedural Manual for Asylum Representation Affirmatively

and in Removal Proceedings.

This supplement does not purport to discuss all aspects of immigration practice related to

asylum proceedings. Additional sources should be consulted when more complex

questions regarding current law and procedure arise. Many of these resources are

referenced in NIJC’s Basic Procedural Manual.

NIJC’s Basic Procedural Manual for Asylum Representation is available for download at

http://immigrantjustice.org/useful-documents-attorneys-representing-asylum-seekers

National Immigrant Justice Center        August 2019 
2 
TABLE OF CONTENTS 
 
ACRONYMS  ................................................................................................................................. 3 
 
INFORMATION ON NIJC’S PRO BONO PROGRAMS ............................................................ 4 
THE NATIONAL IMMIGRANT JUSTICE CENTER ............................................................................. 4 
NIJC’S CLIENTS............................................................................................................................ 4 
WHEN TO USE THIS SUPPLEMENT ................................................................................................ 5 
 
IMMIGRATION DETENTION AND REMOVAL OVERVIEW ............................................... 6 
WHO ARE DETAINED IMMIGRANTS? ............................................................................................ 6 
HOW DO ASYLUM SEEKERS END UP IN IMMIGRATION CUSTODY? .................................................. 6 
WHERE ARE SOME ASYLUM-SEEKERS DETAINED? ...................................................................... 7 
WHO IS INVOLVED IN A DETAINED ASYLUM CASE? .................................................................... 8 
 
WORKING WITH DETAINED CLIENTS ................................................................................. 10 
WHY IS PRO BONO REPRESENTATION IMPORTANT .................................................................... 10 
HOW DOES DETENTION AFFECT ASYLUM SEEKERS .................................................................. 11 
WHAT CAN ATTORNEYS DO TO PRESENT AND RESPOND TO STRESS IN DETENTION ...............  12 
COMMUNICATING WITH DETAINED CLIENTS  ............................................................................. 13 
DETENTION CONDITIONS……………………………………………………………………..14 
 
OPTIONS FOR DETENTION RELEASE .................................................................................. 16 
CAN A DETAINED ASYLUM SEEKER BE RELEASED WHILE HIS CASE IS PENDING? .................. 16 
IS THERE ANY REASON A DETAINED ASYLUM SEEKER SHOULD REMAIN DETAINED? ............. 17 
 
PRACTICE TIPS FOR REPRESENTING  A DETAINED ASYLUM SEEKER ..................... 18 
PREPARE FOR A FAST CASE ........................................................................................................ 18 
FIRST STEPS. ............................................................................................................................... 18 
HEARINGS WITH DETAINED CLIENTS.......................................................................................... 20 
 
AFTER THE IMMIGRATION JUDGE DECISION   ................................................................ 22 
POST DECISION SCENARIOS  ....................................................................................................... 22 
 
INDEX OF INFORMATION AND DOCUMENTS RELATED TO DETAINED ASYLUM  
CLAIMS ........................................................................................................................................ 25 
 
 
 
 
 
 
 
 

National Immigrant Justice Center August 2019

ACRONYMS

AG Attorney General

AGFEL Aggravated felony

BIA Board of Immigration Appeals

CIMT Crime Involving Moral Turpitude

CFI Credible Fear Interview

DHS Department of Homeland Security

DO Deportation Officer

DOJ Department of Justice

ERO Office of Enforcement and Removal Operations

EOIR Executive Office for Immigration Review

FARO Final Administrative Removal Order

FOIA Freedom of Information Act

ICE Immigration and Customs Enforcement

IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act

IJ Immigration Judge

INA Immigration and Nationality Act

INS Immigration and Naturalization Service

LPR Lawful Permanent Resident

NTA Notice to Appear

OCC Office of Chief Counsel (see also TA)

RFI Reasonable Fear Interview

SDDO Supervisory Detention and Deportation Officer

TA Trial Attorney

USC United States Citizen

USCIS United States Citizenship & Immigration Services

National Immigrant Justice Center August 2019

The National Immigrant Justice Center

The National Immigrant Justice Center (NIJC) is a Chicago-based nongovernmental organization

dedicated to ensuring human rights protections and access to justice for all immigrants, refugees and

asylum seekers through a unique combination of direct services, policy reform, impact litigation, and

public education.

NIJC’s asylum pro bono program relies almost

entirely on volunteer attorneys, the great majority of

whom have no previous experience in immigration or

asylum law. NIJC assists its pro bono partners by

providing training, materials, support services, and

consultations. Largely as a result of the efforts of its

pro bono partners, NIJC has helped thousands of

asylum seekers from more than 60 nations begin new

lives in the United States.

There are three different projects within NIJC that

provide pro bono asylum representation through

volunteer attorneys. NIJC’s asylum project

represents asylum seekers who are not in

immigration detention, while NIJC’s adult detention

project represents asylum seekers who are in the

custody of the Department of Homeland Security (as

well as other detained noncitizens). NIJC’s LGBT

Immigrant Rights Initiative represents individuals

who are seeking asylum based on their sexual orientation or gender identity, both in and out of

custody.

For more information visit www.immigrantjustice.org.

NIJC’s Clients

NIJC’s asylum clients are men, women, and children who have fled civil wars, violence, and

persecution around the globe. Many have survived state-sponsored torture and other persecution.

Other clients have been subjected to severe human rights abuses by non-state agents such as guerilla

groups and private citizens whom the government in the country of origin is unwilling or unable to

control. Through NIJC’s asylum pro bono program, pro bono attorneys have saved the lives of

thousands of clients fearing political, racial, ethnic and religious persecution, gender-based violence,

and abuse based on sexual orientation.

When To Use This Supplement

This supplement is intended as a brief guide to asylum practice in the detained context and is a

supplement to NIJC’s Basic Procedural Manual for Asylum Representation Affirmatively and in

INFORMATION ON NIJC’S ASYLUM PRO BONO PROGRAM

NIJC Projects Serving

Asylum Seekers

Asylum Project: Serving non-

detained families, children,

and adults seeking asylum.

LGBT Immigrant Rights Initiative:

Serving detained & non-detained

adults & youth seeking asylum

based on sexual orientation or

gender identity.

Detention Project: Serving

detained adult asylum

seekers.

National Immigrant Justice Center August 2019

Removal Proceeding. NIJC’s Basic Procedural Manual for Asylum Representation and other materials

related to asylum representation are available on NIJC’s website here.

For additional questions about:

 Representing detained asylum seekers: Jesse Johnson,

jejohnson@heartlandalliance.org

 Representing LGBT asylum seekers: Michelle Velazquez,

MiVelazquez@heartlandalliance.org

National Immigrant Justice Center August 2019

Who Are Detained Immigrants?

On any given day in the U.S., the government detains more than 50,000 people in immigration

custody.

The U.S. government detains non-citizens of various backgrounds, including:

 Newly-arrived undocumented individuals

 Undocumented individuals who have lived and worked in the United States for years

 Long-term lawful permanent residents

 Asylum seekers

who have been harmed/tortured or who fear harm/torture in their countries

of origin

Federal law provides that individuals who have suffered or fear persecution in their home countries

based on their race, religion, nationality, political opinion, or social group can apply for asylum in the

United States. To qualify for asylum, the applicant must be physically present in the United States.

Many individuals may petition for asylum while detained and as a defense to removal or deportation.

While more information on asylum in general can be found in NIJC’s Basic Procedural Manual for

Asylum Representation, http://immigrantjustice.org/useful-documents-attorneys-representing-

asylum-seekers, this supplement is intended to highlight the unique issues involved in the pro bono

representation of detained asylum seekers.

How Do Asylum Seekers End Up In Immigration Detention?

Non-citizens in immigration detention come from a wide range of backgrounds and are in detention

for a variety of reasons.

 Asylum seekers who request protection at or near a U.S. port of entry are mandatorily

detained and cannot be released from detention until they pass a credible fear interview. INA

§ 235(b)(1)(B)(iii)(IV).

 Other asylum seekers are detained because of a criminal conviction, even though they have

already served their sentence for that conviction. Some asylum seekers with criminal histories

may be eligible for release from immigration detention on bond. Many criminal convictions

result in mandatory custody, meaning the asylum seeker must be detained throughout the

duration of her case.

 Other asylum seekers end up in immigration detention, even though they have no criminal

history, because they were brought to the attention of ICE during a routine traffic stop or an

immigration raid.

 Finally, some asylum seekers end up in immigration detention because they were previously

ordered removed from the United States but reentered the country without inspection and

later found themselves back in immigration custody.

See: ICE, Detention Management, https://www.ice.gov/detention-management#tab2

For simplicity’s sake, this document will refer to all non-citizens seeking protection in the United States as

“asylum seekers,” even if many of these individuals are not eligible for asylum itself.

IMMIGRATION DETENTION AND REMOVAL OVERVIEW

National Immigrant Justice Center August 2019

Where Are Asylum Seekers Detained?

The Department of Homeland Security (DHS) manages the largest immigration detention system in

the world and spends more on immigration enforcement than Congress allocates for the FBI, the Drug

Enforcement Administration, the Secret Service, the U.S. Marshals Service, and the Bureau of

Alcohol, Tobacco, Firearms and Explosives combined.

Immigrant detainees, including asylum

seekers, are primarily detained in three types of facilities: Service Processing Centers (SPCs),

Contract Detention Facilities (CDFs), and Intergovernmental Service Agreement Facilities (IGSAs).

SPCs are owned and operated by ICE. CDFs are operated by private companies under contract with

ICE. IGSAs house most immigrant detainees and are facilities like county jails that ICE uses under

contract with state or local governments. ICE contracts with more than 200 local jails and in 2019 is

funded to maintain more than 50,000 beds for detained immigrants.

Although immigration detention is

considered civil detention, it is

rooted in correctional practices.

According to Dr. Dora Schriro,

former director, DHS Office of

Detention Policy, “the facilities

that ICE uses to detain aliens were

built, and operate, as jails and

prisons to confine pre-trial and

sentenced felons. ICE relies

primarily on correctional

incarceration standards . . . and on

correctional principles of care,

custody and control.”

The Chicago Enforcement and

Removal Operations Field Office

covers 26 facilities across Illinois,

Wisconsin, Indiana, Kentucky,

Missouri, and Kansas. The

Chicago and Kansas City

Immigration Courts adjudicate

proceedings for immigrants and

asylum seekers detained in these states.

Of these facilities, the six largest detention centers –

McHenry County Jail (Illinois), Dodge County Detention Center (Wisconsin), Pulaski County

Detention Center (Illinois), Kenosha County Detention Center (Wisconsin), Jerome Combs Detention

“Banking on Detention: lock up quotas & the immigrant dragnet,” Detention Watch Network, Center for

Constitutional Rights (2015); “Immigration Enforcement in the United States: The Rise of a Formidable

Machinery” Migration Policy Institute, (Jan. 2013).

“Banking on Detention: lock up quotas & the immigrant dragnet,” Detention Watch Network, Center for

Constitutional Rights (2015); J. Rachel Reyes, Immigration Detention: Recent Trends and Scholarship, Center for

Migration Studies (2019); Spencer Ackerman, ICE is Detaining 50,000 People, A New All time High, The Daily

Beast (Mar. 8, 2019)

Dr. Dora Schriro, former director of U.S. Dep’t of Homeland Security’s (DHS) Office of Detention Policy and

Planning, Immigration Detention Overviews and Recommendations, 2 (2009).

NIJC primarily represents detained individuals with cases before the Chicago Immigration Court.

National Immigrant Justice Center August 2019

Center (Illinois), and Boone County Jail (Kentucky) – each hold between 100 and 300 individuals

daily.

NIJC representation is not strictly limited to the Mid-West. NIJC also represents clients in detention

facilities across the United States, mostly along the Southern border in California, New Mexico, and

Texas.

Who is Involved in a Detained Asylum Case?

Most of the entities involved in the asylum process for a detained asylum seeker are the same as in the

process for a non-detained asylum seeker. All detained asylum seekers seek asylum as a defense to

deportation (with an exception for certain asylum seekers who filed for asylum while they were

designated as unaccompanied immigrant children). This means the individual will present her case before

an immigration judge (IJ).

Note: Some individuals are referred to immigration court without a “Notice to Appear” for

withholding-only proceedings. This usually occurs when the person has a prior removal order,

reenters the United States without permission, and ICE reinstates their prior removal order.

“Not too Late for Reform: A Report from the Midwest,” National Immigrant Justice Center (Dec. 2011) at 4.

National Immigrant Justice Center August 2019

Entities Involved in a Detained Immigration Case

Client

Department of Homeland Security

(DHS)

Department of Justice (DOJ)

 Client

 Client’s family

and friends

 Immigration & Customs Enforcement

(ICE)

o Enforcement & Removal Operations

(ERO)

o Office of Chief Counsel (OCC)

 Customs & Border Protection (CBP)

 U.S. Citizenship & Immigration Services

(USCIS)

 Executive Office for Immigration

Review (EOIR)

o Immigration Court

o Board of Immigration Appeals

(BIA)

Entities Involved in an Immigrant’s Detention

Detention Facility Staff

ICE-ERO

Detention facility staff (guards, wardens,

medical, etc).

 Detention facility staff do not work directly

for ICE or DHS.

 Attorneys should not ask the detention staff

about the client’s case

Deportation Officers (DO): responsible for detainees in

ICE custody. Every detainee has an assigned DO. In the

Chicago area of responsibility, DOs work out of the

Chicago ICE office and are not present in the detention

facilities.

National Immigrant Justice Center August 2019

Why Is Pro Bono Representation Important?

Detained asylum seekers, like all immigrants in removal proceedings, do not have the right to

appointed counsel. Thus, they have three options: paying for an attorney, obtaining pro bono

representation, or proceeding pro se.

Pro bono representation is particularly critical for detained immigrants because of the nature of

immigration detention:

 ICE frequently detains immigrants and asylum seekers in remote detention facilities far from

their families, social service providers, and attorneys.

 Phone access in and out of immigration detention centers is frequently limited or nonexistent.

Detained immigrants thus face significant challenges in even contacting potential counsel.

 The Immigration Court in Chicago covers remote locations. For example, Pulaski County

Detention Center is located 350 miles from Chicago. There is no way to reach the jail by

public transportation due to its remote location.

 Given the high volume of cases and the logistical complications of representing detained

individuals, without pro bono support NIJC is unable to ensure that detained asylum-seekers

with strong claims are able to obtain legal services.

Asylum

seekers need

pro bono

representation

NIJC’s clients live at or below

200% of the federal poverty

guidelines, most cannot afford

an attorney.

Non-citizens in immigration

proceedings do NOT have a

right to appointed counsel.

Individuals with representation

are 5 times more likely to

succeed in their case than those

without representation.

WORKING WITH DETAINED CLIENTS

National Immigrant Justice Center August 2019

How Does Detention Affect Asylum Seekers?

The nature of immigration detention frequently creates and exacerbates stress, anxiety, and mental

health symptoms such as post-traumatic stress disorder (PTSD) for all detained non-citizens for a

number of reasons:

 Communication is difficult, expensive and not private.

 Detained non-citizens have limited access to information, documentation, and people outside

of detention.

 Detained non-citizens are frequently transferred to remote facilities, far from family, without

notice, and without knowing their location within the United States.

 Immigration detention systematically deprives an individual of autonomy and control over

her life. A detained non-citizen’s inability to know what will happen in her case, when it

could happen, and what is happening with family outside of detention is emotionally taxing.

These experiences are typically amplified for asylum seekers. Being detained has an exceptionally

high emotional toll on asylum seekers for a variety of reasons:

 Many asylum seekers struggled with symptoms of PTSD before being detained and lack

access to medication and therapy in detention;

 Immigration detention may resemble the type of mistreatment the asylum seekers endured in

their home country; and

 Asylum seekers who crossed the border with partners or family are frequently separated from

them and end up in different parts of the United States, creating further stress and anxiety for

the asylum seeker, who does not know about the well-being of her family members.

National Immigrant Justice Center August 2019

What can attorneys do to

PREVENT and RESPOND

to client stress in detention?

PREVENT!

 Orient the client: Describe the timeline, court

process and next steps during each call. You may

be the client’s only information source. Ask if

they have questions.

 Confidentiality: Explain confidentiality in

simple terms. For each call, check to see if they

feel comfortable speaking with you – are there

guards or other inmates around who can hear

them speak?

 Give your client choices: Do they want to have a

call with you in the morning or the afternoon? Do

they want to write down their experiences and

send them to you? Do they want copies of what

you are filing?

 Follow through: This is very important for

someone who lacks autonomy and control. If you

can’t do something when your client would like,

that’s okay. Setting boundaries is also

important. But when you set a deadline, meet it.

This will help build trust.

 Make a plan together: Tell them what you’re

going to work on (affidavit, testimony prep, etc.),

how long it will take, and offer to take breaks.

RESPOND!

 Check on detention conditions every time: Ask

them how they are, whether they’ve had any

problems with guards or other inmates at the jail

since you talked to them last. Acknowledge

problems that arise and whether you can help or

will try to help.

 Affirm the difficulty of their experiences. If they

tell you a family member died, it is okay to express

sympathy, while also acknowledging that you

cannot imagine what their situation feels like. And if

they say they can’t sleep because the TVs in the jail

are too loud, acknowledge the difficulty of that too.

 Recognize the client’s authority regarding their

case and encourage self-determination, while

inquiring about underlying reasons, especially if

they change their minds about something important

or suddenly decide to stop fighting their case. For

example, if a client suddenly states that she wants to

give up her asylum case, talking through the

consequences of returning to her home country may

help her sort through her goals and fears. Remind

your client that you are there to advocate on their

behalf and that you will fight for them.

National Immigrant Justice Center August 2019

Communicating With Detained Clients

In NIJC’s local service area,

ICE contracts with county jails to detain immigrants and asylum

seekers. While individuals in immigration custody are in civil detention, the facilities are intended for

individuals in criminal custody, and many of the facilities also house criminal inmates.

The staff at detention facilities do NOT work directly for DHS or ICE. Attorneys should not ask the

staff at the detention facilities any questions about a client’s case. If a client has temporarily or

permanently been transferred out of a facility, jail staff is unlikely

to know why or where a client has gone.

Options to communicate with a detained client include:

 Telephone

 In-person visits to the detention facility

 Video tele-conferencing

 Written communication via fax (at some facilities) or mail.

NIJC has established agreements with Chicago ICE so that certain

facilities allow private attorney conference calls between attorneys

and clients. Some facilities also allow faxing between clients and

their attorneys. Each facility has a separate and different procedure

for arranging attorney calls and in-person visits and for fax requests

(where allowed). Video-teleconferencing (VTC) is not available at

all facilities, is generally not private, and is expensive.

Scheduling Communication

It is very difficult for detained clients to reach their attorneys from detention, so it is important that pro

bono attorneys schedule times to directly contact them and establish a communication plan soon after

case acceptance.

 For example, pro bono attorneys might tell the client that they will call several times at the

beginning to prepare the case and then every week after that, at a fixed time.

 Establish a fixed time for attorney calls to ease the client’s anxiety about being in detention.

Phone calls:

NIJC’s local service area for detained clients is Illinois, Indiana, Wisconsin, and Kentucky.

Phone calls:

Schedule in advance.

Some facilities require 48-hour

notice.

Plan for limitations.

Certain facilities limit phone calls.

Confirm if the line is secured.

Not all detention lines are

confidential; attorney lines are

supposed to be confidential.

The staff at detention facilities do NOT work directly for DHS or ICE.

Attorneys should not ask the staff at the detention facilities any questions

about a client’s case.

NIJC has a document describing each facility’s procedures for

communication with detained clients; this information will be shared with

pro bono attorneys at the time of case acceptance.

National Immigrant Justice Center August 2019

 Several of the facilities limit the duration of calls, generally to

half an hour. If you would like to schedule an hour-long call,

make this clear in your request.

 Some jails respond to call requests to confirm or suggest a

rescheduled time, while others do not. If you have not received

confirmation of your call, call the jail to confirm.

In-person visits:

 Attorneys can arrange in-person attorney visits and should call the facility at least 48 hours in

advance to do so.

 Attorneys must bring proper identification, a bar card, and a copy of the signed G-28

(attorney notice of appearance form).

 Non-attorneys (paralegals/interpreters) will also need a form of ID and some facilities require

a letter from the attorney. Review the specific procedures for the facility for details.

 Facilities have different rules regarding whether interpreters can enter the facility with

attorneys. Attorneys who plan to bring an interpreter should clarify the facility’s rules in

advance of the visit.

If an attorney encounters any problems communicating with a detained client or with staff at one of

the detention facilities, the attorney should contact NIJC.

Detention Transfers

Pro bono attorneys should be aware that ICE may move individuals between facilities without

warning, usually due to concerns regarding bed space. If ICE has moved a client or an attorney cannot

find a client at the facility where she was previously detained, the attorney can try to locate her

through the ICE Online Detainee locator System at https://locator.ice.gov. Attorneys can also call the

deportation officer assigned to their client, who should be able to advise the attorney regarding the

client’s location. Please check with your NIJC contact to find out which deportation officer is

assigned to your client.

Detention Conditions

As it is common for detained asylum seekers to experience problems with conditions in detention, it

is important that pro bono attorneys maintain regular communication with their clients so they are

aware of any issues their clients are having with detention conditions.

Pro bono attorneys must affirmatively ask the client questions about detention conditions while

preparing for the case and notify NIJC of any issues. Unfortunately, NIJC cannot guarantee that we

Potential detention

condition issues:

- Lack of adequate medical

care

- Segregation

- Obstacles to religious

practice

- Discrimination

Contact NIJC

to strategize

Potential

responses:

- Contact supervisory

staff

- Contact DHS

- Litigation

Please review the

specific procedures for

your client’s facility

when scheduling a call

or visit.

National Immigrant Justice Center August 2019

will be able to advocate or address every concern that arises. We do, however, work to educate

members of Congress and other decision makers about human rights violations in detention. The

issues faced by your client are largely the basis of these education efforts and larger policy actions.

National Immigrant Justice Center August 2019

Can A Detained Asylum Seeker Be Released While His Case Is

Pending?

The answer will depend on several factors. Below is an overview of options for release from

detention while a case is pending. NIJC will identify whether a detained asylum seeker is eligible for

release at the time the pro bono attorney accepts the case for representation.

Parole

Individuals who present themselves at a port of entry, such as an airport or

bridge between the United States and Mexico, may be eligible for parole.

To be eligible for parole, an individual must (1) pass their credible fear

interview, (2) establish their identity to ICE’s satisfaction, and (3) establish

they are not a flight risk or danger to the community.

Unfortunately, at present, Chicago ICE denies nearly all parole applications, even where applicants

meet the requirements described above. If NIJC recommends that a pro bono attorney nonetheless

attempt to seek parole for an NIJC client, the attorney should continually manage the client’s

expectations regarding his chance of ultimately obtaining parole.

Bond

Individuals are eligible for bond if they have been apprehended in the interior of the United States, do

not have a prior removal order, and do not have certain criminal convictions.

In addition, individuals

who entered the U.S. between ports of entry, were apprehended near the border soon after crossing

into the U.S., and have passed credible fear interviews. have also historically been eligible for bond.

(By contrast, and counterintuitively, people who enter the United States by presenting themselves at

a port of entry are not eligible for bond).

However, in April 2019, the Attorney General issued a decision, Matter of M-S-, restricting bond for

asylum seekers. Specifically, under that ruling, recently arrived asylum seekers who entered the

United States without being inspected at a port of entry and passed credible fear interviews can no

longer seek release on bond and will only eligible for release on parole, which, as noted above, is

generally difficult to obtain. TheAttorney General’s ruling is currently being challenged in the federal

courts. If your client is an asylum seeker who entered the United States on or after July 15, and passed

a credible fear interview, please check with NIJC for the current status of the litigation.

If an individual is eligible for bond, animmigration judge will consider two main factors when

determining whether to grant bond: (1) whether the individual is a flight risk, and (2) whether the

individual is a danger to the community or security risk. Matter of Guerra, 24 I&N Dec. 37 (BIA

2006). Judges often find that newly-arrived asylum seekers are flight risks and set high bonds for this

reason. Additionally, a criminal record that reflects that the person might cause harm to another

person, such as a DUI or domestic battery, will affect a judge’s decision on bond.

See INA § 236(c) for a list of mandatory custody grounds. The list is very broad and includes offenses such as

simple drug possession.

OPTIONS FOR DETENTION RELEASE

NOTE! Parole in the

immigration context is

different than in the

criminal context!

National Immigrant Justice Center August 2019

Is There Any Reason a Detained Asylum Seeker Should Remain

Detained?

It may seem obvious that pro bono attorneys should try to get their clients out of custody, particularly

if the client is struggling in detention or has a case that is likely to go up on appeal and result in

prolonged detention. However, there is one significant reason why some asylum seekers may opt to

remain in custody until their asylum claim is adjudicated by the immigration judge: detained cases are

adjudicated much more quickly than non-detained cases. For example, most detained asylum seekers

have a merits hearing within a matter of a few months, whereas most non-detained asylum seekers

must wait three or more years for a merits hearing. On the other hand, remaining in detention also

risks a quicker deportation or prolonged detention if the asylum seeker loses his case. If NIJC advises

that a client is eligible for release, the attorney will want to discuss the pros and cons carefully with

the client, in conjunction with NIJC, so the client can decide how he would like to proceed.

National Immigrant Justice Center August 2019

Prepare For A Fast-Paced Case

Unlike non-detained asylum cases, cases that are on the detained docket move much more quickly, usually

resolving about two months after the initial master calendar hearing.

To accommodate this pace, pro bono attorneys need to minimize the initial start-up time for a case. Attorneys

should therefore ask their firms to address the issues surrounding conflicts and opening a new matter on an

expedited basis.

First Steps

NIJC recommends pro bono attorneys take the following steps upon receipt of a detained asylum

case:

Review NIJC’s Asylum Manual. The Basic Procedural Manual for Asylum Representation

Affirmatively and in Removal Proceedings, is available on NIJC’s website at

http://immigrantjustice.org/useful-documents-attorneys-representing-asylum-seekers.

Contact the client. NIJC advises the client when her case has been assigned to a pro bono attorney,

but the attorney should also contact the client directly (and quickly) after accepting a case. The

attorney will be responsible for arranging most, if not all communication because detained individuals

are limited in their ability to make outgoing calls. (For more information, review the section above

on communicating with detained clients.)

Enter an appearance with both the immigration court (DOJ-EOIR) and with the Office of

Enforcement and Removal Operations (DHS-ERO).

Connect with

client

Submit

documents to

court

(2 weeks

before merits)

Merits

Hearing

Decision

Begin to

prepare case

Master

Calendar

Hearing

PRACTICE TIPS FOR REPRESENTING

A DETAINED ASYLUM SEEKER

6 - 8 weeks

National Immigrant Justice Center August 2019

EOIR: To practice before the immigration court, attorneys must first register with EOIR’s E-Registry

system. All attorneys currently practicing before EOIR must complete the E-Registry process

immediately or risk suspension before EOIR until the registration process has been completed. For

information about the E-Registry system and the identification verification process, please see

http://www.justice.gov/eoir/engage/eRegistration.htm and NIJC’s Asylum Manual.

Attorneys should complete the registration process as soon as possible after accepting a defensive

asylum applicant for representation so they can file their appearance with the court and begin to

receive any court correspondence. All attorneys representing a client in court must file an E-28

appearance form with the Court electronically or on paper (the court prefers green paper for E-28s)

and serve a copy electronically or via mail on the trial attorney.

ERO: Pro bono attorneys should send their client a Form G-28

at the

detention facility to sign and return as soon as possible.

After the client sends the signed G-28 back to the attorney, the attorney should sign it and then fax it

to the deportation officer assigned to the client’s case, along with a fax cover sheet stating that the

attorney is the attorney of record and requesting that the deportation officer notify them of matters

regarding their client The attorney should save the fax confirmation as proof that she has entered her

appearance with ERO.

Review the file in full. In addition to reviewing the file that NIJC provided to the pro bono attorney,

the attorney should request to review the immigration court file as soon as possible. The form

required for requesting a file review can be found at Appendix C of NIJC’s Basic Procedural Manual

for Asylum Representation.

If the client previously appeared in court pro se or with a non-NIJC attorney, the pro bono attorney

should also request a copy of the DAR (Digital Audio Recording) and listen to those recordings to

hear what was discussed at prior hearings.

Review the Notice to Appear and any documents already in the court file. When NIJC refers a

detained asylum case to a pro bono attorney, the client is already in immigration court proceedings

and the Immigration and Customs Enforcement (ICE) trial attorney will have already filed

documents, including the charging document known as the Notice to Appear (NTA), with the Court.

If the client did not already plead to his NTA while pro se, the judge will require a response to the

NTA at the initial hearing.

Carefully review the allegations and charges on the NTA with the client to ensure accuracy. Errors

on the NTA can be extremely detrimental and should be discussed with the trial attorney and the

judge at the hearing. Consult with NIJC prior to pleading.

If the client does not have a copy of the NTA, the attorney can obtain a copy of this document and

conduct a file review at the immigration court. But remember that if the client is in withholding-only

proceedings, the client will not have an NTA.

Attorneys can download Form G-28 from www.uscis.gov and Form E-28 from www.usdoj.gov/eoir.

See Appendix C for templates of fax cover pages for detention facilities.

For more information on the NTA please see the General Asylum Manual.

ERO: Form G-28

EOIR: Form E-28

National Immigrant Justice Center August 2019

Review any pre-existing asylum applications. If the client has had one or more hearings already,

she may have already filed an asylum application with the court, perhaps with the help of another

detained individual. Language barriers and the absence of counsel may have resulted in the inclusion

of erroneous information in the first application. The immigration court record will contain any

previously filed asylum application, and errors in the application may generate problems in the court

adjudication.

Minor corrections can be made to the application in the form of written or oral amendments. If the

original application contains significant errors, the pro bono attorney may wish to request leave from

the court to file a superseding application. Bear in mind that any inconsistent information contained

in a previous application will need to be explained to the court and may be included in the judge’s

credibility assessment.

Determine needed resources and begin collecting documents. Obtaining documents for a detained

individual can be complicated. NIJC attempts to obtain relevant documentation from clients prior to

case acceptance and will share these documents when assigning a case

to a pro bono attorney. However the documents NIJC provides with

the case file should not be considered exhaustive.

Upon review of the file, pro bono attorneys will likely identify

additional documents that would be useful in supporting the protection

claim. Remember that the burden is on the asylum seeker to

corroborate all aspects of her case or establish that corroboration

is not reasonably obtainable. INA § 208(b)(1)(B)(ii). Corroborating

evidence in the form of affidavits and documentary evidence will be

critical to proving a case.

The process of getting documents is often complicated by the client’s detention and the speed of

the detained docket. Detained clients will have little ability to obtain evidence themselves. Pro bono

attorneys should plan to take over this task.

Pro bono attorneys should start brainstorming with the client right away about potential corroboration

and get permission to contact friends and family to obtain this evidence.

Requests for affidavits from country experts should be made quickly.

If an attorney believes a mental health or medical evaluation would benefit the client’s case, the

attorney should contact NIJC immediately to determine if an evaluation will be possible.

For more information on how to prepare an application, including a list of documents, please see

NIJC’s Asylum Manual.

Hearings with Detained Clients

Video Teleconferencing (VTC)

Most master calendar hearings for detained immigrants are conducted via Video Teleconferencing

(VTC): the judge, ICE attorney and pro bono attorney appear in the court, and the client appears on

camera from the detention center’s VTC room. If the client requires an interpreter, the court-provided

interpreter may be in the courtroom or may participate by telephone.

Pro bono attorneys should

start brainstorming with the

client right away about

potential corroboration and

get permission to contact

friends and family to obtain

this evidence as soon as

possible.

National Immigrant Justice Center August 2019

Some merits (individual) hearings may also be held via

VTC unless the respondent or the attorney request

otherwise. Attorneys should contact the Chicago

Immigration Court to ascertain whether their client’s

hearing will be in person or via VTC.

If a detained client’s merits hearing is scheduled to occur

via VTC, the pro bono attorney should file a Motion for an

In-Person Hearing.

After filing the motion and prior to

the hearing, the attorney should follow up with the court

clerk to confirm that their client will be brought in-person

for the hearing. NIJC will notify the pro bono attorney of any special issues regarding the client’s

detention center that might prevent ICE from bringing the client for an in-person hearing.

In some cases, the client will appear in-person, but the judge will appear via VTC from another

immigration court location. This generally happens when the court schedules the client’s hearing with

a “visiting judge” sitting in another location; it is not common on the detained docket currently.

A sample Motion to Hold an In-Person Merits Hearing can be downloaded at,

http://immigrantjustice.org/attorney-resources..

NOTE! If scheduled for a VTC hearing,

always check in with the client at the

beginning of the hearing to confirm that

she can hear properly through the VTC

equipment.

Ask the judge to turn the camera

towards you so that you can say hello to

your

In Chicago:

 VTC hearings occur at the Chicago Detained Immigration Court, 536 S Clark Street, 3rd

Floor, Chicago, IL 60605.

 All in-person hearings for detained individuals are held at the Chicago Detained

Immigration Court at 536 S Clark Street, Basement,

 Regardless of where the hearing is held, all documents for detained hearings should be

filed at the Chicago Detained Immigration Court, 536 S Clark Street, 3rd floor, with a

copy served on the ICE trial attorneys at 525 W. Van Buren, Suite 701, Chicago, IL,

60607.

 If an attorney is unsure whether a client’s hearing will occur in-person or via VTC, the

attorney can call the Chicago Immigration Court at 312-697-8400.

National Immigrant Justice Center August 2019

Post-Decision Scenarios

The pro bono attorney should immediately notify NIJC when the immigration judge issues a

decision in the client’s case so that NIJC can advise on next steps.

There are a number of potential scenarios that can occur in a detained asylum case after an

immigration judge issues a decision.

If the Immigration Judge Grants Asylum and ICE Waives Appeal

The client should be released directly following the hearing. Before the attorney leaves the

courtroom, the attorney should confirm with the ICE officer present and/or the ICE trial attorney that

the client’s deportation officer is being alerted as to the win and will process out the client. Unless a

family member or friend is present and able to pick up the client, the attorney should plan to wait in

the basement at 536 S. Clark for the client to be released. Clients are generally released within half an

hour but it can sometimes take longer.

It is critical that attorneys discuss a release plan with clients in the event the case is granted. The

Interfaith Committee for Detained Immigrants (ICDI) is available to help. Their hotline is 312-985-

7740. If the client does not have family or friends in the Chicago area with whom he can stay, NIJC

recommends the pro bono attorney contact ICDI prior to the merits hearing in the event ICE releases

the client the day of the hearing. ICDI volunteers will then be available to assist if the client is

released.

Note: If the IJ grants withholding of removal or protection under the Convention Against Torture

rather than asylum, the client will not immediately be released. He will likely remain in ICE custody

for an additional 90 days, though at times ICE agrees to release people sooner. The pro bono attorney

AFTER THE IMMIGRATION JUDGE DECISION

If the IJ grants

asylum and ICE

waives appeal

Client is released

from custody

If the IJ grants

asylum and ICE

reserves appeal

The client

remains detained

If the IJ denies

asylum and the

client/pro bono

attorney appeals

The client

remains

detained.

If the IJ denies

asylum and the

client waives

appeal

The client is

deported

National Immigrant Justice Center August 2019

should prepare the client for a 90-day wait but discuss with NIJC whether to advocate for a quicker

release.

Once the client has been granted asylum, celebrate!

Please notify NIJC of the victory right away, so we can

advise regarding next steps and ensure the client can

access certain post-asylum benefits. Then, share the

good news with colleagues and take another case!

For information on advising the client after asylum is granted, please see NIJC’s Basic Procedural

Manual for Asylum Representation.

If the Immigration Judge Grants Asylum and ICE Reserves Appeal

ICE has 30 days to decide whether to appeal the IJ’s decision but usually decides much more quickly

in detained cases. Trial attorneys often waive appeal within a few days of the IJ’s decision, even if

they initially reserved appeal. They will notify the client’s DO but may not notify the pro bono

attorney, resulting in the client’s unexpected release. The attorney should make sure the client has a

way to contact the attorney if he is brought downtown for release, and be ready to jump in as needed.

The pro bono attorney may want to contact the trial attorney two to three days after the hearing to ask

whether ICE plans to appeal, so that the attorney can better plan for the client’s release. On the other

hand, if the trial attorney was particularly adversarial, the pro bono attorney may want to avoid

contacting the trial attorney until the appeal period has lapsed.

If ICE does appeal the IJ’s decision to the Board of Immigration Appeals, the client’s detention may

be extended for at least three more months, and potentially longer, while the appeal is pending. If the

client is struggling in detention, the pro bono attorney should contact NIJC to discuss whether there

are any options to get the client out of detention.

If the Immigration Judge Denies Asylum and the Client Reserves Appeal

If the IJ denies asylum, the pro bono attorney should reserve appeal to preserve the client’s options

and then contact NIJC as soon as possible after the hearing to discuss the hearing and a potential

appeal to the BIA. Next, schedule a call with the client to discuss his options and determine whether

he wants to appeal.

Because respondents in removal proceedings have a right to appeal, NIJC considers the scope of pro

bono representation to continue through the length of an appeal, if the client wishes to pursue one.

Thus, if the client wants to appeal the IJ’s decision, NIJC expects that the pro bono attorney will

continue representation throughout the BIA appeal.

If the Immigration Judge Denies Asylum and the Client Declines to Pursue

an Appeal

If the IJ denies asylum, the client may opt to be deported instead of remaining detained and pursuing

an appeal. Ultimately, it is the client’s decision whether or not to pursue an appeal. However, the pro

bono attorney should discuss the pros and cons of declining the appeal and ensure the client

understands the consequences of foregoing an appeal and accepting deportation. NIJC can assist the

attorney with this conversation.

See NIJC FAQs:

 Post-Win Asylum

 Working with Detained Clients

National Immigrant Justice Center August 2019

Once the client has a final removal order (either at the IJ or BIA level), ICE can remove him at any

time. Deportations to Mexico are fairly quick and occur within a few weeks, while deportations to

Central America generally occur within two to four weeks. Removals to other countries may take

longer.

If the client has not been deported within 90 days following his removal order, ICE will conduct a

Post-Order Custody Review (POCR). If ICE believes that the client will be deported soon, ICEwill

continue to hold him. Per the Supreme Court’s decision in Zadvydas v. Davis, ICE has up to six

months to hold someone if removal appears foreseeable.

National Immigrant Justice Center August 2019

Manuals

 Immigration Court Practice Manual

 Board Of Immigration Appeals Practice Manual

NIJC Resources for Pro Bono Attorneys

 NIJC’s Basic Procedural Manual for Asylum Representation is available for download at

http://immigrantjustice.org/useful-documents-attorneys-representing-asylum-seekers

 FAQs: See our website

o Working With Detained Clients;

o Post-Win Information for Asylees and Pro Bono Attorneys;

o Employment Authorization for Asylum Applicants and the Asylum Clock.

 Contact Information for Chicago ICE Detention Facilities

Please see additional sample documents are available on NIJC’s website

INDEX OF INFORMATION AND DOCUMENTS RELATED

TO DETAINED ASYLUM CLAINS