Criminal Defense of Immigrants


§ 2.5 C. Immigration Detention is Often Mandatory

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Most foreign national defendants with criminal convictions are placed in mandatory immigration detention, without possibility of release on bond by the immigration judge handling the deportation case.  They may not be released until they are deported to their country of citizenship.  They may quickly be driven in a government van down to one of the huge immigration camps on the U.S.-Mexico border, in Eloy or Florence, Arizona, far from home and family.  The conditions are excruciating, far worse than in the typical county jail or state prison.  They may instead be housed in local jails under contract with the DHS and subjected to deportation proceedings locally.


                Because the proceedings are considered “civil” – not “criminal” – in nature, there is no right to court-appointed counsel to defend them against deportation.  Half of the persons in deportation proceedings have no means to hire an attorney to defend them.  The immigration judges are often affirmatively working to deport them, telling them God knows what off the record, and then going on the record to record their agreement to accept deportation, even if – without knowing it – they may have some defense against deportability or some claim to discretionary relief from deportation.


                Even if they have an immigration lawyer, even if they know their offense should not trigger deportation, or that they are eligible to apply for relief from deportation, they may not be able to endure remaining in custody until the immigration court grants their release.  Their situation is greatly worsened by an automatic-stay provision, under which the government can keep them in mandatory detention, even if the immigration judge agrees to release them, until the conclusion six or eight months later of a government appeal to the Board of Immigration appeals challenging the release order.  See § 15.21(H), infra.


                If we have succeeded in obtaining an order for the client’s release from criminal custody on O.R. or bail, prior to conviction, but an immigration hold surfaces before the client has actually been released, the same thing happens: the client moves into deportation proceedings as if no criminal proceedings were still pending against them.  A bench warrant issues in the criminal case, but the immigration authorities typically proceed with deportation anyway, unless we work with immigration counsel to obtain the client’s return in custody to the criminal court to face the music there, still subject to an immigration hold.  Of course, any time the client serves in immigration custody after release on the criminal charges is dead time, for which the client receives no credit against a future sentence, since the custody was immigration, not criminal, custody.  See § § 6.11-6.27, infra.


                If the client – miraculously – is not subject to mandatory immigration detention, then a bond must be posted – $1500 minimum – as in a criminal case.  The client is released wherever they have been held in immigration custody.  An immigration lawyer can be hired, at a cost of thousands of dollars, to try to defend them against deportation, or to try to obtain compassionate relief from deportation if they are eligible to apply for that relief.