Normally, criminal defense counsel will attempt to get the client out of criminal custody on the least onerous terms possible, and as quickly as possible.  If the client is not a U.S. citizen, however, and has an immigration hold, release from criminal custody can sometimes bring the mixed blessing of passing the client directly from criminal custody into immigration custody without ever seeing the light of day.  Immigration authorities can then transport the client across the country to a distant immigration detention center, in a different federal circuit where different immigration laws apply,[2] and it may be difficult or impossible to secure the presence of the client in criminal court for future court appearances.[3]  The client will also not receive credit for time served, against a criminal sentence, for time spent in immigration custody after release from criminal custody.  If the client has or may have an immigration hold, defense counsel should therefore think carefully about the decision to obtain the client’s release from criminal custody, gather the necessary information, and often consult with immigration counsel experienced in criminal issues before doing so.

 

                Immigration detention can have a devastating effect on a client’s life and the life of his or her innocent family.  See § § 6.33-6.45, infra.  Sometimes immigration detention is mandatory, and the immigration court is not allowed to release the client on bond, resulting in continuous 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.

 

                Defense counsel should investigate the case as much as possible, see Chapter 3, supra, and consult immigration counsel, see § 6.4, infra, for advice on whether to secure the client’s release from criminal custody if the client either has an immigration hold already placed against him or her, or if an immigration hold might be lodged before release from criminal custody has actually been effected.

[2] See § 15.21(B), infra.

[3] See § § 6.48-6.51, infra.

Second Circuit

CATEGORICAL ANALYSIS - ANALOGY TO SENTENCING CASES
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) ("Finally, in the sentencing context, which has long informed our jurisprudence regarding aggravated felony findings under the INA, we recently remanded a case because it was unclear to what extent the District Court based its sentencing enhancement (for a "pattern of activity involving the sexual abuse or exploitation of a minor") on unsubstantiated charged conduct.")

POST CON RELIEF - FEDERAL - HABEAS - CUSTODY - IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254
United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. 2254 for purposes of habeas corpus jurisdiction).