Criminal Defense of Immigrants

(C)  Temporary Detention of 10 Days or Less for Immigration Purposes.  Federal criminal courts may in limited circumstances order “temporary detention [for up to 10 days] to per­mit . . . deportation, or exclusion” where they find the defendant “is not a citizen of the United States or lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)); and such person may flee or pose a danger to any other person or the community.”[20]  The court must then direct the prosecutor to notify immigration authorities of the temporary detention order.  Once notified, “If the [immigration] official fails or declines to take such per­son into custody during that period, such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings.”[21]

                “Congress chose not to exclude deportable aliens from consideration for release or detention in criminal proceedings.”[22]  A risk of flight charge, because of the possibility of deportation, may not be raised if the prosecution does not move for a temporary detention order.[23]

[20] 18 U.S.C. § 3142(d).

[21] Ibid.

[22] United States v. Adomako, 150 F.Supp.2d 1302, 1305 (M.D. Fla. 2001) (a decision whether a defendant is likely to fail to appear in court as required is “essential even to a decision to impose tempo­rary detention,” so alienage is only one consideration in deciding whether to release a defendant from custody in a criminal case).

[23] United States v. Xulam, 84 F.3d 441, 444 (D.C. Cir. 1996).