Criminal Defense of Immigrants
§ 6.1 I. Introduction
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Chapter 6 discusses the complex interplay between the decision to secure release from criminal custody, and the goal of obtaining release from immigration custody. We focus here on criminal defense counsel’s tasks. The nature of immigration detention during removal proceedings, and how to obtain review of bond and detention decisions, are discussed § § 6.33-6.47 infra. As usual, this Chapter begins with a summary of what criminal defense counsel most needs to know about these questions.
The first issue counsel confronts is whether to seek to obtain the immigrant client’s release from criminal custody. Normally, of course, counsel always seeks the client’s liberty, but if the client is not a U.S. citizen, who has or may in future have an immigration hold lodged, release from cutody may not be best for the client. How to obtain the information necessary to make this decision, and how to decide the question, are discussed in § § 6.3-6.5, infra. The effect of noncitizen status on the decision whether and on what terms to release the client from criminal custody is discussed in § 6.7, infra.
Immigration detention can have a devastating effect on a client’s life and the life of his or her innocent family. See § § 6.33-6.47, infra. Sometimes immigration detention is mandatory, and the immigration court is not allowed to release the client on bond, resulting in permanent detention until deportation occurs. It is of great importance for criminal counsel to avoid a disposition of the criminal case that triggers mandatory deportation. Information on how to conduct the criminal defense to achieve this result is discussed in § § 6.10-6.28, infra.
The topics of arrest by immigration authorities on immigration (not criminal) charges is discussed in § 6.30, infra, and this chapter then discusses arrest by immigration authorities on new (usually federal) criminal charges, see § 6.31, infra, and in order to enforce arrest warrants issued by state and federal criminal courts. See § 6.32, infra.
At times, it is necessary for criminal counsel to bring a client from immigration custody into criminal custody to appear in criminal court, either to answer a charge, or to attempt to obtain post-conviction relief. See § 6.49, infra. It is also possible, on occasion, to obtain advance parole so a client can be admitted into the United States, even after deportation, to attend a criminal court hearing. See § 6.50, infra.
Finally, a listing of selected Resources is given. See § 6.52, infra.