With a new administration comes changes to our immigration laws. Fortunately, the SPD’s Immigration Practice Coordinators are here to provide you with an updated analysis of the many legal developments relevant to our clients.
This guest post was authored by Kate Drury and Melissa Nepomiachi.
It’s impossible to pick up the newspaper today and not read about increased efforts at immigration enforcement. With the new administration there is a flurry of enforcement and other policy changes that will certainly impact our non-citizen clients. The following post summarizes these updates and provides practitioners with some tools to utilize when representing non-citizen clients.
New Enforcement Guidelines
A change in federal policy affects enforcement of immigration laws in local courthouses. Please remember that this is a federal rule, not a state one. Previously, a 2021 guideline prohibited immigration enforcement in courthouses. Now, in 2025, a new guideline permits immigration enforcement in courthouses when certain conditions are met.
It’s important to note that the current Administration considers anyone who is in violation of the immigration laws to be a priority for enforcement. This is a change from the last administration that prioritized the removal of violent convicted criminals and prioritized keeping families together (with the exception of those convicted of violent offenses). According to this article, even people that have received a promise from the federal government that they will not be deported if they meet certain criteria, such as DACA recipients, are finding themselves in removal proceedings.
If you see ICE in your courthouse, please notify immigration practice coordinators who would like to keep track of this information.
Also, remember that the majority of non-citizens end up in immigration custody due to local law enforcement (Sheriff) compliance with ICE detainer requests. It’s imperative to make sure you know your county jail’s practice on honoring such requests to be able to advise clients of the likelihood of ICE detention upon release from criminal custody.
Change in Mandatory Detention
The Laken Riley Act passed in late January 2025 expands mandatory immigration detention for certain noncitizens (those who entered without inspection). A conviction is not necessary for this law to apply. The law applies to those who are arrested, or charged, or make admissions to the list of applicable crimes:
- Burglary
- Theft
- Larceny
- Shoplifting
- Assault of a law enforcement officer; or
- Any crime that results in death or serious bodily injury to another person.
This means that if the client is transferred into ICE custody before the state charge is resolved, the client will be held in ICE custody without the possibility of bond while the case is pending. This may result in removal of clients before the criminal case has concluded. Even if the client is not convicted of the crime listed above, if the client was arrested for a crime listed above, this law may apply. This may result in difficulties in getting clients back to state court to finish up their cases if the client is transferred to ICE custody. ICE custody does not have to be in Wisconsin; the client could be transferred to Kentucky, for instance.
The Laken Riley Act does not create new grounds for removal.
Pending Legislation at the Wisconsin State Level Regarding Jail Participation
In early February, Wisconsin state legislators released a bill that would 1) require sheriffs to request proof of legal residency for all people detained on felony charges 2) require sheriffs to comply with all ICE detainer requests. Governor Evers plans to veto this bill.
The effect of the bill would strengthen the jail to deportation pipeline, as well as encourage racial profiling. Many jurisdictions who have participated in similar programs in the past found implementation to be costly. Importantly, bills regarding increased mandatory enforcement sow distrust in the criminal legal system and result in fewer crimes being reported to law enforcement, decreasing public safety. Here is one link to research on this topic.
Given that this legislation would directly impact our clients and their individual liberties, the public defender office released a press statement opposing implementation of the bill. The SPD was joined by the ACLU opposing implementation of the bill.
Resumption of Deportations to Places We Had Deferred Deportation Previously
Some clients operate under the false assumption that the immigration consequences of criminal convictions do not matter in their particular case because the United States will not deport them to their country of origin. This is a commonly held belief for those that entered as refugees or were granted asylum. It is your responsibility as a criminal defense attorney to inform a client that this belief is mistaken.
Whether to deport someone to their country of origin is a policy decision made by both the United States government and the foreign government. Either government could change policy any day, for any reason. Clients should be warned that policy decisions could change. Here is an article about the United States and how it changed its policy decision as applied to Cambodian foreign nationals, removing persons with no family ties to Cambodia who had essentially lived in the U.S. for their entire lives.
In early February, 2025, the United States resumed deportations to Venezuela that had previously been suspended. This comes after the United States suspended temporary protected status to Venezuelans. TPS is a federal program that protects people from countries ravaged by war or natural disasters from deportation, and grants them work permits.
Note: Some of our clients have TPS and we can expect more countries may be affected.
The administration also canceled the arrival of thousands of already vetted and approved refugees until further notice.
There is also the possibility that a non-citizen can be deported to a third party country, not their home country if they have an agreement with the United States. The U.S. is proposing such agreements with El Salvador and Guatemala. Costa Rica announced on February 18, 2025 that they will accept deportees from the US from third party countries.
Birthright Citizenship
Although the current administration passed an executive order that strips certain babies born in the United States of their U.S. citizenship, birthright citizenship is guaranteed by the United States constitution. A constitutional amendment would presumably be needed to change this right. At the same time, 22 State Attorney Generals, including Wisconsin’s Josh Kaul, have filed suit against the administration regarding the executive order.
Resources to Find Clients Who May Be In Immigration Detention
Immigration detainee locators are not perfect. Here are some resources that may be useful:
To check whether there was a removal order entered in the past or information on a pending immigration court case, you can use the EIOR Automated Case Locator (will need A number)
To check whether a person is in ICE custody you can check the ICE Locator (will need A number, or country of origin, date of birth)
If your client has been transferred to ICE custody, yet has a pending state court case, please reach out to the immigration practice coordinators, Kate Drury and Melissa Nempomiachi. They may be able to brainstorm ways to get the client back to State custody to resolve pending charges, in some but not all cases. Also, keep in mind that Wisconsin has only one facility for non-citizen detainees, the Dodge County Jail. If you know your client is there you can set up visits, phone calls, etc, with them. See this link that provides information on how to reach your clients housed there.
Resources for Clients
The following resource might be helpful for noncitizen clients. One of the best ways to project clients from immigration detention is to make sure they know their rights. If your client is likely to go into immigration custody because of an ICE hold, or they simply are worried about it, it may be helpful to give them “know your rights” resources.
Immigration Defense Project: Know your rights
Marquette University: Family Deportation Preparation
Immigrant Legal Resource Center: Family Preparedness
Legal Aid NYC: Advance Planning for Non-Citizen Parents
Below is a list of local legal service/ advocacy groups:
Resources for Lawyers: Wisconsin State Public Defender Immigration Practice Coordinators
Remember, immigration practice coordinators Melissa Nepomiachi and Kate Drury and here to assist SPD staff and private bar partners with immigration questions on criminal cases. To request a Padilla advisal, please use the Immigration Questionnaire form pasted below.
Great article. Can you get it out to the General Practice Section? Family Law? Every lawyer ought to read it. Maybe a topic for a noon CLE? Muni Attorney Conference?