Criminal Defense of Immigrants


§ 6.10 IV. Criminal Defense to Minimize Immigration Detention

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If the immigration authorities believe a noncitizen defendant is removable, they can arrest and detain him or her subject to release on immigration bond, which is very similar to release from criminal custody on criminal bond.  Many noncitizens can meet these bond requirements, and secure release from immigration detention, unless they are held subject to mandatory immigration detention without possibility of bond.  If they are in mandatory immigration detention, it is impossible for them to be released pending the final conclusion of removal proceedings.  Immigration detention is very onerous, and many detained noncitizens cannot tolerate the months or years of mandatory immigration detention necessary before a final resolution of the removal case in their favor is achieved.  Therefore, mandatory immigration detention often causes removal even if the noncitizen is not properly removable.  The entire outcome of the immigration removal case may therefore depend on whether or not the noncitizen is subject to mandatory detention.



Ninth Circuit

Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (where a criminal statute contains no elements ["any assault other than assault in the 1st, 2nd, 3rd, degree is fourth degree assault"] the reviewing court looks to state caselaw to determine the elements for categorical analysis; where caselaw lays out three ways to commit the offense, as with RCW 9A.39.041, fourth degree assault, the statute will be considered divisible) , citing Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) ("in determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.") (citation omitted).