In Immigation Court, the Deck is Stacked Against Daniel Ramirez and Other Immigrants

Last week in Washington State, Immigration and Customs Enforcement (ICE) arrested and detained Daniel Ramirez.  Ramirez now sits in the Northwest Detention Center in Tacoma Washington awaiting his hearing in Immigration Court on whether he should be removed from the United States.

Ramirez was granted protection pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program.  DACA recipients essentially received a promise that the Government would not seek their removal for a certain period of time, and legal work authorization.  ICE seized Ramirez from his home despite the fact that his DACA protection had not expired.  Ramirez has no criminal convictions.

ICE contends that Ramirez admitted to "gang affiliation," and based on that persuaded U.S. Citizenship and Immigration Services (USCIS), the agency that grants and administers DACA, to revoke DACA protection.  Though his attorney, Ramirez denies gang membership.  He states that ICE has doctored records to make it appear as though he admitted gang affiliation, and that ICE has misconstrued statements he made during a custodial interrogation.  Moreover, ICE acted illegally and in direct contravention of the Constitution when it seized him, and questioned him aggressively without giving him an opportunity to consult with a lawyer.

Ramirez challenged his detention in the U.S. District Court for the Western District of Washington.  Friday, the court ruled that it would not order Ramirez be released, but that the Immigration Court must hold a hearing within one week on whether Ramirez should be released on bond.

The District Court's ruling is correct in that there is a procedure to seek Ramirez's release from detention while his removal case is pending before the Immigration Courts.  The Immigration Court should have the first shot of addressing whether Ramirez should be released on bond.  What is unusual, however, is that the District Court has given Ramirez permission to skip an appeal to the Board of Immigration Appeals (BIA) if bond is denied, and ask that the District Court hear his case on appeal.  This may be in recognition of the immense procedural hurdles that face Ramirez, indeed any alien, who seeks bond in Immigration Court while being detained for removal proceedings, faces.

When a person is detained, the Immigration Court can hold a hearing on whether to allow the person to be released on bond pending the resolution of his or her removal proceedings.  Because Ramirez has no criminal convictions, he may be released on bond.  He is not a mandatory detainee.

But a bond proceeding is not the same as a habeas corpus proceeding.  Through a habeas corpus proceeding, a court decides whether the Government is holding a person unlawfully.  A bond proceeding is simply a determination of whether a person should be released while further proceedings are pending, and if so the amount of a bond to be posted to secure his or her attendance at a later hearing.

The difference between these two proceedings shows the limits that the Immigration Courts have.  Despite the name, Immigration Courts as not part of the judiciary.  They are part of the Executive Branch.  Because of this, Immigration Courts lack powers of equity.  They cannot rule that an action of the Executive Branch is unconstitutional.  They cannot hold a person in contempt.  They cannot issue injunctions.  The powers of the Immigration Courts are strictly limited to what powers Congress has granted by statute.

The Immigration Courts are part of the Department of Justice.  They cannot hold an action of the Department of Homeland Security to be invalid.  In some instances, when the Department of Homeland Security has denied an application for immigration benefits, the Immigration Courts can hold a new hearing on the same application.  Thus, Immigration Courts can hear an application for asylum after it has been denied by USCIS, or review a petition to remove conditions on permanent residency, if initially denied by USCIS.  But without statutory authority, it cannot review other actions by the Department of Homeland Security.

This means that whether or not ICE violated the Constitution in arresting Ramirez and interrogating him without a lawyer present is not the deciding factor in the bond proceeding before the Immigration Court.  The questions before the Immigration Court will be whether Ramirez is a danger to the community, whether he is a risk of not appearing for his removal hearings, and whether there is any form of relief from removal available to him.  The constitutional violations could come into play if the Immigration Judge believes that the evidence obtained in violation of the Constitution should be suppressed in considering the bond motion.  But the constitutional arguments are not much more helpful in a bond proceeding.

For Ramirez, the key issues appear to be whether his so-called gang affiliation renders him a danger to the public, and whether there is relief from removal available to him.  In this regard, the reason he was able to stay in the United States before his arrest was the fact that he was granted protection pursuant to DACA.  DACA was not created by statute.  In fact, the President only created DACA when Congress failed to pass the DREAM Act, which would have given legal status to certain undocumented aliens who were brought to this country when they were children.  It is entirely a creature of executive discretion, not statute.  Because the Immigration Court lacks the ability to review every action of the Department of Homeland Security, the Immigration Court lacks the power to decide if DACA protection was rescinded illegally by USCIS.  This could be the issue that sinks Ramirez's request for bond.

But even assuming the Immigration Court were to grant Ramirez bond, that would not be the end of the case.  If bond is granted, the Government has the right to appeal it to the BIA, another arm of the Department of Justice.  If the Government appeals a bond determination, Ramirez would remain detained pending the outcome of the BIA appeal.  Even then, the Government has one more avenue of appeal, this time to the U.S. Court of Appeals for the judicial circuit where the Immigration Court lies.  In this instance, that is the 9th Circuit.

With all of these procedural barriers, it is difficult for an alien in detention to be released on bond, unless the Department of Homeland Security consents.  If the Immigration Judge denies bond, the prospect that a detained alien could be waiting in detention, which in just like being held in jail in all but name, for months and spending money on appeals while still waiting for a full hearing on the issue of removal itself is so daunting, that many aliens simply give up at this point, and agree to be returned to their home country.

It is perhaps because of this great disadvantage to alien detainees that the U.S. District Court gave Ramirez the ability to waive appeal to the BIA, and return to the District Court should he be denied bond.  The U.S. District Court, as part of the judiciary, does have equitable powers, and can entertain an argument that Ramirez's detention is unlawful because of the constitutional violations.  For this reason, the Ramirez case will continue to be an important case to watch when it comes to the potential of reigning in ICE enforcement raids.  This may well be the case that provides immigration law practitioners the tools needed to defend our clients' constitutional rights more effectively.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832
(571) 551-6069 (ESP)

ICE's War Against the Latino Community

When word of the nationwide enforcement raids by ICE began to break about a week ago, I wanted to be able to say that this is not the time to get hysterical. I wanted to say that these occasional raids are common, and certainly happened under the Obama Administration. But as I read more and more news accounts, I cannot say that. Instead, what I am seeing is a coordinated attack on the Latino community in a modern-day which hunt to find anyone ICE can seek to remove from the United States. I see the utter demise of any sense of humanity or dignity in this nation's immigration enforcement policy. I see the Constitution being torn to shreds. 

Let's start with the change in policy itself. Under the Obama Administration, ICE was instructed to concentrate its enforcement resources on priority cases involving dangerous criminal aliens. Undocumented aliens who were here just earning money to feed their families, and who had not had brushes with the law, were given leniency. 

In his first week in office, President Trump signed three executive orders on immigration policy. In one order, the President outlined the new enforcement priorities, which included aliens who had committed acts that constitute a crime but who have not been convicted. To some degree, this seemed innocuous enough. The Immigration and Nationality Act does have a similar basis of inadmissibility. 

In a closed-door session with lawmakers, however, ICE leadership let it be known that it viewed Trump's executive order as removing the shackles imposed by the Obama Administration. Now the reference to aliens who had committed acts that constituted a crime but who had not been convicted was being interpreted to mean that any of the aliens present in the United States without valid legal status was considered a priority for enforcement. That is, instead of the two to three million Trump  believed were criminal aliens he wanted to focus on, ICE considered all eleven million undocumented aliens as fair game for removal. 

It should be noted that in this very meeting where ICE announced its interpretation of the Trump policy, certain Latino congressional representatives were turned away. That's right. Latino congressional representatives were denied the right to hear from ICE itself the new enforcement priorities that would affect their Latino constituents and their families. 

What's worse is that ICE's enforcement activities have shown an utter disregard for morality and human decency, as ICE has practically declared war on the Latino community. Let's explore just a few examples. 

In Arizona, a woman who had been reporting into ICE annually for ten years was taken into custody during her annual check-in. Within 48 hours she was removed because a decade before she used a phony Social Security number to find work. She had no history of any violent crimes. 

In Washington State, a man who had been granted protection and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals program (DACA) was taken into custody during a raid on his home targeting his father. ICE ignored the DACA protection, claiming the man had known gang affiliations. ICE's evidence of this?  A tattoo which translates into English as "peace."

In Virginia, ICE waited outside a church hypothermia shelter to stop Latino males as they left the shelter in the morning. One of the Latino males stopped was a permanent resident who is in this country legally. Obviously, ICE's marching orders were to stop all Latino males with the hope of finding one or two who would be removable. 

But the piece de resistance?  In Texas, ICE waited outside a courtroom as a woman obtained a protective order against her abusive partner. Once she left the courtroom, ICE arrested her. In all likelihood, the tip to ICE on where the woman would be was given by the abuser. 

What conclusions, then, are the Latino community supposed to take from ICE's recent actions?  First, ICE has no interest in being transparent and telling Latino political leaders what it's enforcement priorities are. Second, don't bother venturing out to seek any legal protection or to accept help from others with charitable intentions. Are you homeless and need shelter for the night?  ICE will be waiting outside the door to take you into custody in the morning. Are you an abused woman?  If you seek help in the courts, the moment you step outside of the courtroom, ICE will be there to perpetuate the abuse.  Are you a Latino male?  ICE will presume gang affiliation, especially if you have any tattoos. 

The point is that ICE's indiscriminate attacks on the Latino community must be resisted. ICE knows that due to language barriers, many Latinos present here don't know their rights.  ICE knows that many Latinos will not resistente the assertion of authority. This has to change. 

Know your rights, and understand that ICE had to act within the constraints of the Constitution. Don't open the door to ICE unless they show you a judge-issued warrant. Don't answer any questions posed by ICE. Demand your right to see a lawyer. Don't sign any papers without consulting a lawyer first. Insist on a hearing. Only by fighting back within the bounds of the legal system can we push back against ICE's assault on the Latino community. 

By: William J. Kovatch, Jr. 

For an appointment call (703) 837-8832

(571) 551-6069 (español)

Driving Without a License: More Likely to Get Jail Time, But the Feds Aren't Necessarily Biting Anymore

Driving without a license is a misdemeanor in Virginia.  It can carry up to one year in jail.  There had been a pattern, particularly in Prince William County.  A Hispanic driver would be pulled over for a minor traffic offense.  If the driver was undocumented, he couldn't get a license, so he'd be charged with driving without a license.  The plan would be to get the undocumented alien in jail, so he could be reported to ICE, and ICE could put a detainer on him to start removal proceedings.  Thus, the job of lawyers like me was to try our hardest to keep people charged with driving without a license out of jail.

Well, now there is good news and bad news on that front.  First, the bad news.  As short as a few months ago, I was able to negotiate a higher fine in lieu of jail time for people charged with their second or more driving without a license.  This was true even in Prince William County.

At least in Prince William County, that is no longer true.  When a person has a prior driving without a license charge, Prince William County Commonwealth Attorneys are now insisting on at least one day in jail.  They're not willing to consider a higher fine, even the maximum of $2,500, in lieu of jail time.

But here's the good news.  About two years ago, I had a client whose only crime on his record was a single driving without a license charge.  For whatever reason, the police officer actually took this fellow into custody pending trial.  In that situation, there was little I could do.  Since he was taken into jail, he was reported to ICE and ICE put a detainer on him to start removal proceedings.  And this was in Fairfax County.

Well, it seems like that may be a thing of the past.  I had a client who was forced to spend a night in jail after a second driving without a license.  I totally expected an ICE detainer, and the start of removal proceedings.  I was pleasantly surprised when I called the Prince William County Jail the next morning, and was told that my client was released as scheduled.  It seems that ICE may not be starting removal proceedings against undocumented aliens where the only convictions are for driving without a license.

This turn of events would seem to flow from the evolution of the Obama Administration's deportation policy.  Back in June of 2011, ICE announced that it would concentrate its enforcement resources on high priority cases, such as violent criminals and gangs.  Then, this year, the Administration announced that it would grant certain undocumented aliens deferred action, effectively allowing them to remain in the United States, and give them work authorization.  In October of 2012, in a move that angered Prince William County officials, ICE announced that it was going to discontinue a program that involved local police and federal cooperation when local police picked up a suspected immigration violator.

It seems that the Federal Government is putting its money where the President's mouth is.  Run-ins with the law for minor offenses no longer seems like a reason for ICE to start removal proceedings.  A person convicted for a second charge of driving without a license may have to face the inconvenience of a night in jail in Prince William County.  But, at least for now, it appears that if all you have are convictions for driving without a license, ICE is not interested in pushing for deportation.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Take Steps to Avoid Immigration Scams!

People seeking help to stay in the country, unfortunately, tend to be the most vulnerable to immigration scams.  USCIS warns to watch out for such scams.

What are some of the common immigration schemes?  USCIS provides a list of immigration scams.

One of the most common schemes are notarios.  Notarios publicos in Latin American countries have a different role than notary publics in the United States.  In the United States, a notary public verifies signatures.  But, in other countries, notarios are public officials with important duties.  The duties can include performing marriage ceremonies.  Many unscrupulous people will exploit this linguistic problem, and advertise that as notarios they are qualified to help someone get immigration status.  At times, the advice given by such notarios is just plain wrong.  Other times, notarios will fill out forms and file them for their clients, without checking into whether the forms are appropriate to file in the alien's specific case.  Notarios have also been known to charge money for services that are never delivered.

Then, there a local businesses who promise that they can get a person immigration benefits.  These can include promises to get a green card, work authorization and other visas.  Many of these businesses will advertise that their services are cheaper than a lawyer's services.  Of course, only a lawyer can give proper immigration advice.

One such immigration scheme was busted outside of Houston.  There, an elderly woman bilked aliens out of thousands of dollars to perform services which she never provided.  According to authorities, the woman promised to file forms on behalf of aliens, but failed to deliver.  Instead, she would make repeated excuses as why she had not performed as promised.

According to USCIS, other scams include the use of .com websites, which imitate real U.S. Government websites.  U.S. Government website always end in .gov.  Forms are available from USCIS with no charge, so aliens should be careful not to pay to obtain forms.

Another common scam involves the visa lottery.  Scammers will promise to make it easier to win the diversity visa program, or will send emails claiming that the alien has won the visa lottery.

One key that can be useful in identifying a scammer is whether the advertisement references the INS, or Immigration and Naturalization Service.  This agency was eliminated after 9/11, and replaced by three agencies with responsibility over immigration:  U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

Those seeking immigration help would be best served by seeking advice from a knowledgeable immigration lawyer, or a reputable organization known to offer immigration help.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

ICE Detention System Needs Reform

Having visited a number of "detainees" awaiting a hearing on immigration issues, I highly recommend this article.  The ICE detention system needs major reform.

The number one problem is that immigration law is civil in nature, not criminal.  This appears to be a hard concept to get across to the average person.  It is even harder for the alien who is being detained.

In many instances, aliens are detained in prisons alongside convicted criminals.  They are treated like prisoners.  They are indeed prisoners in all but name.   They are called "detainees."  But the softer language fails to hide the cruel reality that these are largely forgotten segments of our society.  One where pursuing reform is difficult because it is not politically popular to do so.

The detention system is largely ad hoc.  There are a few federally run facilities, such as Farmville in Virginia. But, in many instances, the Federal Government contracts either within a state or local jail for space, or with a private prison company.

One of the issues that led to this problem was the press for enforcement, enforcement, enforcement.  Naively, the public thinks that enforcement means you pick up an illegal alien, and you neatly drop him off over the border.  That is hardly the case.  When a person is here without a valid immigration status, there are provisions of law which may help that person become legal.  It is that person's right to pursue those avenues.  This means you must have due process.  You must have courts to hear the cases.  You must have Government lawyers to present the Government's side.  You must have humane facilities available to house these people until their hearing is scheduled.  That means money. 

When the Government last pursued an enforcement-only policy, it failed to put the money into the effort that was required.  This led to the ad hoc and inhumane system we now have.  One that in many instances even deprives detainees of the health care they need, as many have died in detention over medical conditions that would have been easily treatable if caught early enough.

You add to the complications that it is much easier for politicians to say that they are being tough on crime.  Thus, they pass measures such as mandatory detention.  This means that aliens who are removable or deportable because of criminal convictions must stay detained, with no hope of being released on bond while waiting for a hearing.  The law is mandatory, giving immigration judges absolutely no discretion.

The law leads to intolerable situations, where a person who has a conviction, and has served time for that conviction, now has to be imprisoned yet a second time for the very same crime awaiting his hearing.  This is true, even if the alien can make a good showing that he is entitled to immigration relief.  I had such a client.  He had been convicted of domestic assault.  He served his time.  he was picked up again later for his immigration problems.  But, he was relief available to him.  I ended up securing permanent residency for him.  In the meantime, he was forced to wait for 9 months in detention, with real, hardened criminals.  And there was nothing we could do about that.

More pleasant sounding words, like "detention," and publicly denying that this is a criminal law matter, fail to hide the deplorable condition that exists in the nation's immigration detention system.  This is a condition that must be addressed, out of pure morality and civility.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

What Do You When a Relative is Detained by Immigration Authorities

When Immigrations and Customs Enforcement comes to your door, it can be a harrowing experience.  If ICE is taking away a relative of yours, there are things you need to do.  The main thing is to gather as much information about the situation as possible.  You will need to have this information so you can consult an attorney, and the attorney can tell you if your relative can be helped.

For more detail, see my article:  "My Husband / Brother / Friend Has Been Taken by ICE - What Do I Do?"

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

California Governor Jerry Brown Vetoes TRUST Act

California Governor Jerry Brown vetoed the TRUST Act, finding the list of crimes where California police would cooperate with an ICE detainer too narrow.

Under California's TRUST Act, law enforcement officials would have been prohibited from complying with ICE detainers except in cases of serious or violent felonies.  In a signing statement, Brown noted that the act would have prohibited law enforcement officers from cooperating with ICE where there were convictions for such crimes as child abuse, drug trafficking, selling weapons, and using children to sell drugs.  Brown concluded by saying, "I believe it is unwise to interfere with a sheriff's discretion to comply with a detainer issued for people with these kinds of troubling criminal records."

ICE is Immigration and Customs Enforcement, the agency charged with enforcing U.S. immigration laws.  A detainer is a request by ICE to local law enforcement officials to hold a person who was in state or local custody until ICE can decide whether to take the individual into detention to begin removal proceedings.

The bill did raise questions of federalism.  That is, under the Constitution, the laws made by Congress in pursuance of the Constitution are the supreme law of the land.   The Constitution gives Congress authority to regulate immigration and naturalization.  Thus, a law prohibiting a local law enforcement authority from complying with a validly issued ICE detainer would violate the Constitution.

The text of the Governor's statement can be found here.

By: William J. Kovatch, Jr.
(703) 837-8832

Applying for Deferred Action Under the President’s New Policy

On June 15, 2012, President Obama and Homeland Security Secretary Napolitano announced a new policy to permit certain undocumented young people to remain in the United States and apply for work authorization.  No specific procedures have been adopted yet.  However, if you qualify, there are certain things you can do to prepare.

Do I Qualify?

To qualify, you must meet five criteria:

(1) Been brought to the United States while under the age of 16;

(2) Have continuously resided in the United States since June 15, 2007 or before;

(3) Currently be in school, have graduated from a high school, have earned a general equivalency diploma, or be honorably discharged from the Armed Forces or Coast Guard of the United States;

(4) Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or does otherwise poses a threat to national security or public safety; and

(5) Is 30 or younger.

What Benefits Can I Get?

Postponement of removal (deportation)

Employment authorization

Can I Become a US Citizen?

No.  This policy does not lead either to permanent residency or citizenship.  It is only temporary protection from being removed (deported) from the United States.

How Do I Apply?

Since I first published this blog entry, new procedures were adopted.  See my later blog entries for a discussion on the procedures.

I am in Removal (Deportation) Proceedings Now.  What Do I Do?

As long as you are not in detention, you can still apply.

I am Not in Removal (Deportation) Proceedings, But I Think I Qualify.  What Should I Do?

If you are not in removal or deportation proceedings, applications should be made to the U.S. Citizenship and Immigration Service (“USCIS”).  There is already a process for applying for deferred action in general.  That is to apply to the District Director of the USCIS District where you live.  You should put together a letter explaining why you qualify for deferred action, and include supporting documentation.  It is expected that USCIS will adopt similar proceedings for this particular policy.

How Long Will the Benefit Last

Under this policy, you can receive deferred action and work authorization for two years.  Then, you can apply for an extension every two years after that.

Note, however, that this is an exercise of discretion of the Obama Administration.  There is no guarantee that this policy will continue.  Plus, it is an election year.  If a new president is elected, there is no guarantee that he will continue with this policy.

Driving Without a Lincense? Beware!

If you are an undocumented alien driving without a license in Virginia, be careful. Virginia will not grant a license to someone without immigration status. If you drive anyway and get caught, it is a misdemeanor, which means there is possible jail time. Although the jail time could be short, the fact is the moment you step into the jail, you are reported to ICE. ICE will ask the local jail to keep you in jail until they can pick you up, and you will be placed in removal proceedings.

The goal, then, if you've been charged with driving without a license is to negotiate a plea with no jail time. This could mean accepting a large fine. It all depends on past criminal history, hour driving record and what agenda the Commonwealth Attorney may have. Your best bet is to hire an experienced lawyer to negotiate the plea for you.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Prosecutorial Discretion - How It Works

I was in Immigration Court on Thursday. A couple of cases, including my own, bought up the President's announcement concerning the new policy toward exercising prosecutorial discretion. Applications for prosecutorial discretion have to be made directly to the Chief Counsel's Office. So, in Washington, DC and Virginia, and alien would write directly to Rafael Choi, the Chief Counsel for this area. The application should contain all information necessary to convince the Chief Counsel to exercise his discretion not to seek removal of the alien. In the meantime, if there is no hope of any other ground of relief, ICE will not support release on bond.

In my case, the only relief we could request was voluntary departure. ICE would not agree to release on bond. Nor would ICE agree to voluntary departure with a voluntary departure bond. But, ICE did agree that we could apply for prosecutorial discretion even after the Judge issued the voluntary departure order.

Best practice, then, is to make the application before coming to Court, as an application for prosecutorial discretion will not be a basis for an Immigration Judge granting bond.

Has ICE Really Changed Its Policy?

Today, I am going to see if ICE will put its money where the President's mouth is. The President announced that ICE would focus its priorities on removing aliens with criminal records who are a danger to the public safety. This Wall Street Journal article discusses how the change in priority was due in part to the number of people being removed based solely on a minor traffic offense.

The White House posted the announcement on its official blog. The blog refers to ICE's exercise of prosecutorial discretion. A memorandum on the exercise of that discretion can be found with this link.

I have a client with a family in the United States, who was arrested for a traffic offense. He has no other criminal convictions. To date, ICE has refused his release on bond. I am renewing my request for his release today, and intend to renew it again when we have his Immigration Court date. We will see if the President is serious or just talk.

The Obama Administration announced that it would allow more undocumented aliens stay in the country, and focus its deportation efforts on those with more serious criminal convictions. The Washington Post details the announcement in this article.

If this is true, it will be a major policy shift. Last year, after a tragic traffic accident in Northern Virginia involving an alien who was in removal proceedings but who had a temporary work permit, ICE adopted a harsh policy toward alien detained after traffic offenses. Under US immigration law, for example, a first time DUI is generally not a deportable offense. However, ICE was detaining people arrested for DUI (even before the arrest resulted in a conviction) and refusing to set a bond for release.

Later in the year, ICE was detaining people who were arrested for offenses as minor as driving without a license, and refusing to set bond for release. This was happening, even when the person had no criminal record, and when the person had a US citizen newborn baby whom he was supporting.

If this change in policy is true, it may perhaps open more doors of relief to aliens pulled over for minor traffic offenses.

Arlington Circuit Court Grants a Writ to Allow Alien Detainee to Testify

The Arlington Circuit Court issued a writ of habeas corpus ad testificandum, instructing U.S. Immigration and Customs Enforcement to transfer the custody of an immigration detainee to the Arlington County Sheriff's Department, temporarily, to allow the alien to testify in an upcoming hearing in state court.

The alien is challenging a sentence entered years ago in a petit larceny conviction. The sentence was for twelve months, with ten months suspended. However, this makes the conviction one for an aggravated felony under U.S. immigration law, and thus renders the alien ineligible for cancellation of removal. The alien argues that his criminal defense lawyer did not discuss the immigration consequences of his plea bargain. If true, then this would be a clear case of ineffective assistance of counsel, as the Supreme Court recently defined it in Padilla v. Kentucky.

There are many different types of writs of habeas corpus. The one that most people are familiar with is a writ where a prisoner seeks to be released, claiming his imprisonment is in violation of law. Usually, this is sought when the prisoner believes that his conviction was the result of a constitutional violation.

A habeas corpus ad testificandum is a writ addressed to the government entity holding the person, to have that person appear before another court in order to give testimony. It is related to a writ of habeas corpus ad prosequendum, which is a writ used when a state court wants to prosecute a prisoner in federal prison.

Where the legal action is pending in a state court, a writ of habeas corpus ad testificandum or habeas corpus ad prosequendum must be issued by that state court. Federal courts have no power to supervise state court proceedings.

This ruling is significant because it is often difficult to get ICE to permit an immigration detainee to appear for a state court proceeding. That is, some aliens have experienced the problem where the alien is arrested for a state criminal action, ICE places a detainer on them, the alien makes bail, only to find himself in ICE custody. Once in ICE custody, the alien often misses his state court hearing. Having the state court issue a habeas corpus writ may permit the alien to attend the state court proceedings, while preserving ICE's custody over the alien for immigration purposes.