Criminal Defense of Immigrants

On the termination of the client’s criminal case, counsel should describe the immigration proceedings that will follow, and give basic advice on how to meet them.[130]  This description of the legal process an immigrant faces in deportation court gives sufficient detail to permit criminal counsel to explain to the client what the client will face after the criminal case is over, the sentence has been served, and the client is transferred into DHS custody under an immigration hold to face the prospect of deportation.  See also Chapter 15, infra.  Federal law generally requires the noncitizen to complete the state sentence before being released into immigration custody to face deportation proceedings.[131]

                As a result of greater attention to the problem of “criminal immigrants,” the DHS is now successfully identifying all, or nearly all, deportable or excludable noncitizens before their release from criminal custody.  This is particularly true since September 11, 2001.  Counsel must assume that the DHS is certain to identify all potentially deportable noncitizens in local, state, or federal criminal custody.  The DHS then lodges an immigration hold against them, usually a month or two before their release date.

                Within 48 hours after release from state custody, the DHS must pick up the client.  If not, the state authorities must release him or her to the street despite any immigration hold.  The client is transferred into DHS custody and often sent to a federal holding facility far away, less often to local state facilities where the noncitizen is held under contract with the DHS.  See Chapter 6, infra.

                Many clients are ineligible to have bond set, especially aggravated felons who have not entered the U.S. lawfully.[132]  The DHS will accept all cash without fee.  Bond requires real estate or full cash collateral, plus 10% per year to the bondsperson.  Once released, the client can fight deportation or exclusion in immigration court, often for a period of a year or more.

                If the client is ineligible for release on bond, or if the client cannot make bond, the possibilities of deportation or exclusion defense are far slimmer since the client is less likely to be willing to remain incarcerated during lengthy immigration court proceedings.

                If the person has been convicted of an “aggravated felony,” illegal re-entry after deportation is punishable by up to 20 years in federal prison under 8 U.S.C. § x1326(b)(2).  Counsel should warn the client of this possibility.  United States Attorneys are identifying and prosecuting these offenders more and more frequently.  The plea bargains for first-offense illegal re-entry after deportation after an aggravated felony conviction range from 30 to 75 months or so, depending on the jurisdiction and the defendant’s deportation history and criminal history score.

[130] If counsel enters an appearance with the DHS, the DHS is prevented from interrogating the client without counsel being present (or the fruits of the interrogation may be suppressed).

[131] See § 6.21, infra. 

[132] See Chapter 6, infra; Appendix F; § 15.21.