Criminal Defense of Immigrants


§ 3.44 (B)

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(B)  Topics of Consultation.  Counsel may ask immigration counsel for information on the following issues:


                (1)  Detention.  If criminal counsel can succeed in obtaining the client’s release from criminal custody on bond or otherwise, will the DHS lodge an immigration hold, and, if so, can immigration counsel obtain the client’s release from immigration custody so the client can (a) assist in the defense of the criminal case, (b) attend drug treatment or other rehabilitative programs prior to or after sentence?


                (2)  Timing.  What is the best timing of the criminal plea, sentence, or appeal from the immigration standpoint?  Would it assist the client to obtain relief from removal or other immigration benefits if the criminal conviction occurred later, rather than sooner?  Can the beginning of deportation proceedings be delayed by the prosecution of a direct appeal from the criminal conviction?


                (3)  Equities.  Can immigration counsel assist criminal counsel by providing information from the client’s immigration file that will document the client’s equities? 


                (4)  Immigration Consequences.  What immigration consequences will flow from each of the various possible alternative dispositions of the criminal case?  Can both counsel identify a safe haven disposition for the client that will avoid adverse immigration consequences?  Can immigration counsel provide information such as a declaration or certified copies of immigration-court or other immigration documents to establish the immigration consequences of the criminal case to assist criminal counsel in the negotiation of an immigration-harmless disposition?


(5).  Client’s Presence.  Can immigration counsel assist criminal counsel to obtain the presence of the client in criminal court after the client has passed into immigration custody?