Recently in Immigration and Customs Enforcement Category

U.S. Immigration and Customs Enforcement Issues New Memo on ICE Detainers

December 27, 2012, by The McKellar Law Firm, PLLC

On December 21, 2012, Director of U.S. Immigration and Customs Enforcement (ICE) John Morton issued a memorandum to provide additional guidance on the use of ICE detainers. I have previously written about ICE detainers here. This memorandum re-emphasizes ICE's focus on removing those individuals whose "removal promotes public safety, national security, border security, and the integrity of the immigration system." A copy of the memorandum can be found here.

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The memorandum promises that ICE will be revising its current detainer form (Form I-247) in an effort to ensure compliance with removing persons who are in the United States without authorization AND who meet one or more of the following 8 conditions:

  1. Prior felony conviction
  2. 3 or more prior misdemeanor convictions
  3. A prior misdemeanor conviction or has simply been charged with a misdemeanor offense if the charge involves any of the following:
  4. * Violence, threats, or assault * Sexual abuse or exploitation * DUI or controlled substance * Fleeing the scene of an accident * Unlawful possession of firearm or other deadly weapon * Distribution of controlled substances * "Other significant threat to public safety"
  5. Prior conviction for illegal entry per 8 USC § 1325
  6. Illegal re-entry after a previous removal or return
  7. Pending or current order of removal
  8. Committed immigration fraud
  9. Poses a significant risk to national or border security or to public safety

While there are many ambiguous and troubling terms used in the 8 conditions above, it is nice to see ICE continue its focus on dedicating its resources to pursuing the so-called "bad immigrants," as opposed to those persons who do not have the 8 referenced conditions.

An Overview of ICE Immigration Detainers

June 19, 2012, by The McKellar Law Firm, PLLC

For defendants and criminal practitioners alike, seeing the terms "ICE Hold" next to a person's name can often cause anxiety and confusion. The purpose of this blog post is to provide a brief overview of what an ICE Immigration Detainer is, and perhaps more importantly, what it is not.

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Pursuant to 8 CFR § 287.7, authorized immigration officers are allowed to issue a Form I-247, Immigration Detainer - Notice of Action, which is a request that the local law enforcement agency notify Immigration and Customs Enforcement (ICE) that an alleged non-citizen has been taken into custody by local law enforcement. A copy of an Immigration Detainer can be found here.

One of the often overlooked sections of both the ICE Detainer and the language of 8 C.F.R. § 287.7(d) is the requirement that the Detainer only allows detention of the alien "for a period not to exceed 48 hours." Although there is some disagreement over when the 48-hour period is triggered, the common view is that it is triggered (for pre-trial cases) by the detained person a) posting bond or getting released ROR (released on his/her own recognizance) or b) the local court dismissing the underlying criminal case against the detainee. Alternatively, if the 48-hour period expires, and ICE has not assumed custody of the detainee, local law enforcement does not have grounds to hold the alleged non-citizen for any suspected federal immigration law violations.

While there are many more nuances about ICE Detainers, it is important to realize that an ICE Detainer is not a document which authorizes "indefinite" holds, as is often assumed. The Detainer is very narrow in its request, and for those agencies who have violated the terms of the ICE Detainer, they can potentially be held liable for damages.

Man Pleads Guilty to Violating Arms Export Control Act by Selling Unmanned Aerial Vehicle on Ebay

August 1, 2011, by The McKellar Law Firm, PLLC

A guilty plea was entered in federal court last week in a case involving the illegal importation of an unmanned drone according to an announcement by the Department of Justice. Henson Chua was indicted in March for trying to sell an unmanned aerial vehicle known as a "Raven" in violation of the Arms Export Control Act ("the Act"). The Act prohibits buying and selling certain military items without a license, and the Raven is such an item.

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According to the facts outlined in the plea agreement, the Department of Homeland Security and Immigrations and Customs Enforcement ("ICE") learned that an unmanned drone was listed for sale on eBay for $13,000. Homeland Security agents began an investigation with an undercover agent posing as a potential buyer. The "buyer" informed Chua that he planned to resell the drone outside the United States after receiving it from Chua. The agents purchased and received the drone last year. Chua was arrested earlier this year when he entered the US.

Chua pled guilty to one count of causing the temporary import of a defense article without authorization under 22 U.S.C. § 2778. This provision requires a party to obtain a license from the federal government before importing certain munitions. This section of the Act also provides penalties of imprisonment for up to 20 years, a fine up to $1 million, or both.

In announcing the plea, ICE agent Susan McCormick stated, "The unlawful import of military technology poses a serious threat to our national security. ICE is committed to working with the U.S. Attorney's Office and military investigators to protect the American public and our military troops overseas from this kind of technology falling into the wrong hands."

The alleged purpose of the Act is intended to do just that: prevent American military equipment and technology from reaching those who would use it against American interests. In this case, the Department of Homeland Security recovered the drone, but it's worth noting, however, how Chua claims he obtained the drone in the first place. Chua stated that he was able to purchase it at an auction conducted by the Philippine government. Apparently, the Philippine government considered the Raven to be abandoned property. While Chua's case represents a success for the prosecution in using the Act to prevent such equipment from potentially falling into the hands of arms dealers, criminals, or hostile governments - who apparently need only sign up for eBay to obtain it - the case also illustrates the limits of such laws when these items are already available for sale halfway across the globe. Buyer (and seller) beware.

Federal Prosecutors Indict 9 Defendants in East Tennessee Prostitution Organization

Prostitution charges are typically the domain of State and local law enforcement, but yesterday prosecutors in Greeneville, Tennessee, unveiled an indictment charging 9 defendants with several federal prostitution-related charges, including conspiracy to transport prostitutes in interstate commerce (18 U.S.C. § 2421), conspiracy to induce interstate travel for prostitution (18 U.S.C. § 2422(a)), and conspiracy to operate brothels with illegal aliens (18 U.S.C. § 2424), among others.

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According to the allegations in the Indictment, here are some of the highlights of the operation:
1. The Defendants recruited Spanish-speaking women who illegally entered the United States and engaged them to become prostitutes.
2. The defendants handled the prostitutes, keeping a prostitute in one location for a week at a time. The prostitutes worked Monday through Saturday and traveled between cities on Sundays. Most of the defendants' prostitutes began working at 1:00 p.m. and worked through midnight, six days per week. The defendants' prostitutes were generally expected to engage in sexual intercourse with 30 customers per day
3. Alleged customers paid the defendants $30 for fifteen minutes of sexual intercourse with a prostitute.
4. The defendants advertised their brothels and prostitution delivery services via word of mouth in the Spanish-speaking communities in the foregoing cities and via business cards printed in Spanish. The business cards used code words for prostitution services including but not limited to, haircuts, flowers, and appetistas.
5. The brothels were located in various locations in Alabama, Georgia, Tennessee, Kentucky, and South Carolina.

Knoxville News Sentinel writer Natalie Alund reports that the indictment was the result of a 5-month investigation. In the article, Hamblen County Sheriff Esco Jarnagin claims that "The women were enticed to come here and paid to enter on the pretense they had an upstanding job or at least a law-abiding job. Once they got here, they'd realized they'd been tricked. They're here, they're hungry, they don't have any friends and have been threatened to cooperate."

If convicted, each defendant could face up to 20 years in prison and a fine up to $250,000.

Immigration and Customs Enforcement Targets Child Pornography and Sexual Predators

February 23, 2011, by The McKellar Law Firm, PLLC

Persons accused of child pornography or sexual abuse of minors charges typically deal with the FBI or with local police agencies and task forces. However, the Denver Post has an interesting article about the increased role that U.S. Immigration and Customs Enforcement (ICE) is taking in the pursuit of sex criminals.

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According to the Denver Post article, ICE is the largest investigative arm under the Department of Homeland Security, and fighting child pornography, child sexual tourism and trafficking of children is one of ICE's top priorities. "We are working around the globe -- and the violators know no border -- and it is incumbent on us to be nimble from a law enforcement perspective," said David Marwell, Denver's acting special agent in charge.

Similar to local investigating authorities, ICE agents work undercover on peer-to-peer networks on the Internet to track down child pornography and work with local and global partners on capturing the producers of the images. The article reports, "And while many federal, state and local law enforcement agencies are investigating the child-porn problem, ICE has specific statutes it can enforce and a presence around the world with 69 offices in 49 countries."

The ICE website discusses one particularly successful investigation called "Operation Falcon, which" identified 39 websites distributing child pornography and led to the arrest of 1,200 international downloaders and more than 300 U.S. customers. Nine individuals from the United States and Belarus were identified and charged as the principals in this investigation. All principals were convicted on various charges related to money laundering, as well as the production and distribution of child pornography.

It's clear that the Government is not limited by its borders in pursuit of alleged sexual criminals. As the world grows smaller, the reach of investigating authorities grows larger.