Criminal Defense of Immigrants

If an immigration hold is placed before the client is actually released onto the streets, the criminal custodian will maintain the client in the criminal detention facility and inform the immigration authorities to come pick the client up to transfer the client into immigration detention.  Because many clients with criminal histories are subject to mandatory immigration detention, without possibility of bond, these clients can then pass months or even years in mandatory immigration detention while they contest removability before the immigration judge, and on appeal to the Board of Immigration Appeals, or United States circuit courts of appeal.

Criminal law enforcement agencies are required to inform the DHS of noncitizens taken into criminal custody for controlled substances violations. [1]

Specifically, the DHS must be informed if the law enforcement official:

(1)  has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States (e.g., as an illegal entrant or visa overstay),

(2)  expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the aliens, and

(3)  requests the Service to determine promptly whether or not to issue a detainer to detain the alien, the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.[2]

The law enforcement agency must also provide the DHS with any record available that “reasonably relates to the [noncitizen’s] status in the United States, or that may have an impact on conditions of release.”[3]

The DHS generally will respond to such notification in one of three ways: (1) immediately interview the detainee by phone to determine alienage and present immigration status; (2) immediately dispatch an immigration officer to interview the detainee in person at the detention facility; or (3) indicate to the state or local official that the Service cannot or will not pursue any investigation of the detainee. If, after a telephone interview, the ICE agent believes the detainee to be deportable, s/he will verbally request that the state or other local officials maintain the individual in custody.[35]

Once DHS becomes aware of a suspected deportable noncitizen, through notification by local authorities or through its own investigatory processes and periodic visits to local jails and prisons, it may file an immigration “hold” or “detainer” with the local, state, or federal law enforcement agencies who have custody of the person.

                Additionally, if the defendant has signed a form agreeing to voluntary departure[5] under safeguards,[6] the DHS has custody of the noncitizen.  However, the client or counsel retains the right to revoke the request for voluntary departure.  To revoke a request for voluntary departure the attorney must present a G-28 Form to the DHS or the border patrol showing that the attorney is authorized to represent the alien.

                If your client has a detainer, you are put on notice that DHS may pick up your client after criminal charges are disposed of or after your client’s sentence has been completed.  Therefore, you should consult an immigration attorney about the client’s deportation defenses, if any, and attempt to obtain a criminal disposition which will not render the client deportable.  A criminal defendant with a detainer must first post bond or be granted O.R. in the criminal case before the defendant will be picked up by DHS at which point bond will be set if there is no mandatory detention.  Immigration bond is unavailable for most criminal grounds for deportation because they trigger mandatory deportation without possibility of bond.  See § § 6.37-6.42, infra. 

[36] INA § 287(d), 8 U.S.C. § 1357(d). 

[37] Id. 

[38] 8 C.F.R. § 287.7(c).

[39] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 8:7 (National Lawyers Guild 2007).  8 C.F.R. §   287.3 provides: “(d) Temporary detention at Service request. Upon a determination by the Service to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Service.”

[40] See § § 15.29-15.33, infra.

[35] Form I-274.