Anyone in the United States in violation of immigration law is vulnerable to being placed in removal proceedings. Some of the most common methods of the Department of Homeland Security (“DHS”) identification and enforcement are:
- Arresting a person at or near a border point just after he or she has entered;
- At courthouses;
- Picking up a person from jail or prison after an arrest or after the individual has completed his or her criminal sentence;
- Through cooperation with parole and probation officers following a criminal sentence;
- Transferring people from local jails who were arrested by state and local enforcement through INA Sec. 287(g) agreements;
- Traffic stops by state and local enforcement that then lead to those officers choosing to call Immigration and Customs Enforcement (“ICE”);
- Home, community, or workplace enforcement actions, or raids;
- Placing a noncitizen in proceedings after he or she unsuccessfully applied for some immigration benefit before the United States Citizenship and Immigration Services (“USCIS”); and
- A DACA request that reveals a “Statement of Fraud” or certain types of criminal history in the records.
Juana, from Mexico, entered the United States on July 1, 2008, without inspection. She has no driver’s license but drives to her job every day. Juana was stopped by a police officer for a broken taillight; when it was discovered that she had no driver’s license, she was arrested by the police. Under the INA Sec. 287(g) jail enforcement program, ICE learned of her state arrest, issued a detainer, and transferred her to ICE custody.
When DHS apprehended Juana, it interviewed her and records information on Form I-213, Record of Deportable/Inadmissible Alien. Much of the data collected establishes her identity, country of birth, country of citizenship, gender, date of birth, marital status, prior immigration history, and the circumstances of her apprehension. In removal proceedings, ICE OCC often relies on Form I-213 to establish alienage and prove removability grounds. However, the Form I-213 must be “probative” and its use “fundamentally fair” to be admitted as documentary evidence to support establishing alienage. A Form I-213 that contains information that is incorrect or was obtained by coercion or duress cannot meet this standard and should not be admissible as evidence to prove alienage or removability. Matter of Barcenas, 19 I&N Dec. 609, 611 (citing Matter of Toro, 17 I&N Dec. 340 (BIA 1989)).