Criminal Defense of Immigrants

(A)  Defendants Awaiting Sentence.  For noncitizen defendants in criminal custody prior to imposition of sentence, the priorities are as follows:

                (1)  Obtain the defendant’s release from criminal custody as quickly as possible, so s/he is released before immigration authorities place an immigration hold.  See § 6.5, infra.

                (2)  Inform the defendant immediately of the right to remain silent and the necessity of refusing to talk either to criminal law enforcement agents, or immigration authorities, about their place of birth or immigration status.    Also inform the defendant, if released, that s/he must not travel outside the United States without checking very carefully first with an immigration lawyer experienced in criminal issues.  See § 3.22, supra. 

                (3)  The current criminal case cannot trigger adverse immigration consequences, including an immigration hold, until a conviction occurs that meets the federal immigration definition of conviction (which includes many dispositions, such as deferred entry of judgment, that are not considered convictions under state law).[1]  The defendant, however, may be subjected to an immigration hold if prior convictions or conduct, such as being undocumented or being out of status, make him or her removable.  See § § 6.11, et seq., infra.

                (4)  If an immigration hold has been placed, obtain a copy and determine whether it is informational only, or directly orders the criminal authorities to hold the defendant, and, if so, the legal basis for the hold.  See § 6.11, infra.  Consult an immigration lawyer to determine whether to continue with efforts to secure the defendant’s release from criminal custody.  See § 6.4, infra.

                (5)  If the defendant has an immigration hold, but the DHS does not pick him or her up within the time allowed by the hold, obtain the defendant’s release by state habeas corpus or threatening the jailers with false imprisonment liability, or both.  See § § 6.16-6.17, infra.

                (6)  Make sure the defendant has not signed a voluntary departure agreement, Form I-274, or else s/he is legitimately in DHS custody.  This consent can be revoked, but consult an immigration lawyer before doing so.  See § 6.5(B)(5), infra.

                (7)  Attempt to obtain a disposition in the criminal case that will not subject the defendant to mandatory immigration detention.  See § 6.40, infra.

                (8)  If you cannot obtain a disposition which avoids rendering your client deportable, or you have negotiated a safer disposition which still may run the possible risk of deportation, you should try to set up a disposition of the criminal case that allows a notice of appeal to be filed.  While a case is on direct appeal, or a notice of appeal can still be filed, in most circuits there is no final “conviction” for immigration purposes.  See § 7.37, infra.  If an appeal is pending, either your client will not be picked up by DHS at the conclusion of the sentence or an immigration attorney can file a motion to terminate deportation proceedings if the client is erroneously detained and placed in removal proceedings.  Termination of proceedings must be granted by the immigration judge if the client is not subject to any other ground of removal and is in lawful status.

                (9)  Try to obtain a sentence that does not subject the defendant to criminal custody, so as to minimize the chances the DHS will identify and interview him or her, and place an immigration hold.  See § 6.19, infra.

[1] See Chapter 7, infra.