Criminal Defense of Immigrants


§ 6.5 B. Whether to Obtain Release from Criminal Custody

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Do not delay obtaining the immediate release of the client from criminal custody if an immigration hold has not yet been placed.  If an immigration hold has been placed, or it is likely that one will be lodged prior to the client’s actual emergence from criminal custody into liberty, however, counsel will need to determine whether


                (a) it will be possible quickly to obtain the client’s release from immigration custody if a hold is placed, see § 6.6(A), infra, or


                (b) the client will be held for an extended period in immigration custody.  To answer this question, it will frequently be necessary to consult with immigration counsel.  See § 6.6(B), infra.


                The immediate priority is to obtain the client’s release before an immigration hold is placed.  If counsel can achieve this result, the client will be released to the streets.  It is then far less likely that ICE will seek the client out and arrest the client on removal charges prior to the conclusion of the criminal case when the client is sentenced to custody.  It is possible, however, that if the client is high on the ICE priority list, ICE may attend the next criminal court appearance and arrest the client on removal charges at that point.  Unless counsel acts quickly to arrange the issuance of a criminal case warrant or hold, the client may then be transported in immigration custody to a distant immigration detention facility, and it may be difficult to obtain the client’s return to criminal court to dispose of the criminal case.


It is far easier to arrange a favorable outcome of a criminal case when the client is at liberty during the criminal proceedings.  The client appears to have more equities at liberty, can assist in raising funds for the defense, and can assist counsel in the investigation of the case and the gathering of evidence.


                If counsel gets the client out, and can obtain a non-custody sentence, or a sentence to a form of custody (e.g., work furlough or home detention) that is not monitored closely by immigration authorities, it is possible the client will not be arrested by immigration authorities at all in connection with the criminal case.  See § 10.73, infra.  This is a great benefit to the client.  This pause in the removal process can allow counsel to seek a non-deportable disposition of the criminal case, as well as any necessary post-conviction relief, so by the time the client comes to the attention of the immigration authorities, the client is not subject to adverse immigration consequences at all on account of the criminal history.  


If it is possible to obtain release pending removal proceedings on an immigration bond, the criminal attorney can assist the defendant in seeking release on bail or O.R. on the criminal charge.  This may require “educating” the criminal court judge about the consequences of an immigration hold.  See § 6.19, infra.  Once the noncitizen is released on bail or O.R. on the criminal charges, s/he will likely be taken into DHS custody within 48 hours.  The noncitizen defendant will then have a chance to post bond on the immigration case if bond is set.  Even if bond is possible, immigration bonds require real property collateral and 10% cash deposit or full cash deposit and are set at $1,500 or more.  The noncitizen can request a hearing for redetermination of bond with the immigration judge (similar to a bond reduction hearing) if bond is available.  Bond redetermination hearings are often conducted telephonically.  See § 6.44, infra.


                If bond on the immigration case is unavailable, the criminal defense attorney will probably not want the client to be released from custody on the criminal charges because then s/he would be taken into DHS custody, probably to some remote location.  For example, it is DHS practice to remove noncitizens arrested in some parts of California to remote locations such as Eloy or Florence, Arizona.[4]  See § 6.36, infra.

[4] In Committee of Central American Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986), the court refused to restrain transfer of unrepresented noncitizens to remote areas where their access to counsel may be limited.  The decision might be different if such transfer effected due process rights by “impairing an established-ongoing attorney-client relationship.”  Where a person is transferred to a remote location, the immigration attorney can petition for a change of venue to a closer urban center, especially if the client makes bond, in which case venue is routinely changed. 8 C.F.R. § 1003.20.  See § 6.36, infra.



Lower Courts of Third Circuit

State v. Fajardo-Santos, 199 N.J. 520, 973 A.2d 933 (N.J. Jul. 8, 2009) (lodging of an immigration detainer against defendant marked a change in circumstances, warranting an increase in bail pending trial; the existence of the immigration detainer increased the likelihood that the defendant would not appear in criminal court for trial because he would be deported).

NOTE: The court finds that 8 C.F.R. 215.3(g) (allowing a prosecutor to prevent the departure of "[a]ny alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States: Provided, That any [such] alien ... may be permitted to depart from the United States with the consent of the appropriate prosecuting authority...."), does not apply to noncitizens in removal proceedings. Therefore, the court determined that the State had no authority to prevent the removal of the noncitizen prior to the criminal trial.

Ninth Circuit

United States v. Gerritsen, 571 F.3d 1001 (9th Cir. Jul. 10, 2009) (military conviction for malicious interference with a military radio system affirmed where defendant waived his right to counsel knowingly and intelligently).

Lower Courts of Tenth Circuit

People v. Nguyen, 80 P.3d 903 (Colo.App., 2003), (a judge has no affirmative obligation to make an advisement regarding the immigration consequences, but once a judge chooses to engage in such an advisement, the advice given must be non-negligent and proper, if the advice lulls the defendant into a false sense of security, the plea should be withdrawn.) Thanks to Jeff D. Joseph.


"The Obama administration is expanding a program initiated by President George W. Bush aimed at checking the immigration status of virtually every person booked into local jails. In four years, the measure could result in a tenfold increase in illegal immigrants who have been convicted of crimes and identified for deportation, current and former U.S. officials said." Spencer S. Hsu, Obama Administration's Enforcement Push Could Lead to Sharp Increase in Deportation Cases, (May 19, 2009).