The Supreme Court’s decision in Padilla is an important step toward protecting the due process rights of immigrants. However, there are many problems with the interplay of criminal and immigration law and procedure, including this catch-22 situation for people picked up by local police in North Carolina. Tana Liu-Beers, attorney and Equal Justice Works Fellow at the North Carolina Justice Center explains:
County jails in North Carolina are full of people who should not be there and who do not have a chance to get out.
Normally, people arrested for all but the most serious offenses get criminal bail set for them. Certainly someone arrested for a noise violation, driving without a license, or even DWI would get a criminal bail set. She can then pay the bail and get out of jail while she waits for her hearing date. For people suspected of being undocumented immigrants, though, there is virtually no way for them to get out. Worse, the system traps immigrants in a vicious legal double-bind from which it is nearly impossible to escape.
North Carolina has a plethora of immigration enforcement programs, many of which deputize local law enforcement to serve as immigration agents. In addition to the well-known 287(g) programs currently operating in eight counties, a program called “Secure Communities” is rapidly spreading. Only the purchase of digital fingerprint technology stands in the way of this darling of the Department of Homeland Security being implemented in every jail in the state. Other federal immigration enforcement programs are also widely used in our state.
The upshot of all these programs is more arrests of immigrants for minor offenses like noise violations and traffic offenses. And a single arrest in a 287(g) or Secure Communities county, regardless of whether the charges are later dropped, is enough to put you on your way to deportation. If the Department of Homeland Security’s Immigration and Customs Enforcement (known as ICE), thinks someone is in the country without proper documentation, it lodges a detainer. An ICE detainer asks the jail to hold someone so that ICE can pick her up. ICE usually declines to set immigration bonds or release people.
What this means is that the opportunity to get out on bail is usually worthless to someone suspected of being an undocumented immigrant. If she pays her bail, ICE picks her up and moves her as fast as possible to an immigration detention center in South Carolina, Georgia or Alabama. The family then loses the bail money, and the immigrant is treated as if she jumped bail and fled from the law. Nevermind that the only reason she missed her state hearing is because she was in immigration detention in another state.
The only way to avoid this catch-22 is to find an immigration lawyer who is willing to request an immigration bond hearing for you. Unfortunately, immigrants in removal proceedings have no right to appointed counsel, so they are on their own to find and pay for someone. The vast majority of detained immigrants never get to consult with an immigration lawyer, much less be represented by one. Even with a lawyer, detained immigrants still have to get over the hurdles of convincing an immigration judge to set bond and getting together thousands of dollars to pay the bond.
Without a chance to get out of immigration detention, immigrants are wise to not pay their bail and just stay in jail. In many cases, these are people who pose no threat to the community and little flight risk. The state court said as much when it set bail for them. But because they are suspected of being undocumented immigrants, we insist that they sit in our county jails with no chance to get out.