Criminal Defense of Immigrants

(B)  Defendants Serving Sentences.  If the defendant has been sentenced, and has an immigration hold placed against him or her, counsel should consider taking the following steps to secure the client’s liberty:

                (1)  Obtain post-conviction relief from sentence, and replace it with a different sentence that does not trigger mandatory detention, if the sentence is triggering mandatory immigration detention.  See § 11.9, infra.

                (2)  Obtain post-conviction relief from the conviction, if the conviction is triggering mandatory immigration detention, and replace it with a disposition that does not trigger mandatory detention.  See § 11.3, infra.

                (3)  If your client will be deportable by reason of a conviction, consider a jury or court trial or submitting the matter on a preliminary examination transcript or police report or pleading guilty under circumstances allowing a direct appeal, and then filing an appeal in the criminal case.  If the matter is on direct appeal when the defendant finishes the jail or prison sentence, DHS cannot use the conviction in most circuits as a basis for deportation until the appeal has been completed.  See § 7.37, infra.  If the defendant is processed for deportation, the client’s immigration attorney can file a motion to terminate proceedings which must be granted if there is no other basis for deportation.

                (4)  If an immigration detainer is filed against your client and your client is eligible for immigration bond, attempt to obtain your client’s release on the criminal charge, and then on the immigration matter after DHS picks up your client.  You should plan and coordinate this with an immigration attorney.  Most criminal removal grounds make the noncitizen ineligible for release.  See § 6.4, infra.

(5)  If  your client is held more than 48 hours, excluding Saturdays, Sundays and federal Holidays, beyond the time the defendant would have been released on the criminal charge, and the client has not signed a voluntary departure request, you should seek your client’s immediate release from custody by threatening a false imprisonment or civil rights violation suit against the custodial agency, city or county, and filing a writ of habeas corpus.  See § § 6.16-6.17, infra.