(B)  Counsel’s Obligations at Sentencing.  At sentence, defense counsel must determine whether the client will be eligible for certain standard programs that might be denied to a noncitizen with an immigration hold, and inform the client what to expect from administrative prison decisionmaking on these questions.  This forms part of counsel’s general obligation to do a competent job of assisting the client to obtain the best sentence possible.  Moreover, because plea bargaining frequently is conducted in light of, and to determine, the exact sentence the client will receive, the likelihood of an immigration hold must be investigated prior to plea bargaining.  Competent counsel will not, for example, negotiate a sentence on the assumption the client will be eligible for release on probation, or to a halfway house, or to sheriff’s parole, or to a drug rehabilitation program, if the client will be ineligible, on account of an immigration hold, to participate in these programs.  A defendant would be entitled to withdraw the plea, or vacate the sentence, under these circumstances if the program for which the hold disqualified him or her played a significant role in the decision to enter a plea agreement.  See § § 2.32, 2.37, supra, and N. Tooby, Post-Conviction Relief for Immigrants § 7.76 (2004).

           

          A sentencing court may grant a noncitizen convicted of illegal re-entry a downward departure under U.S.S.G. § 5K2.0 on the basis of the defendant’s alienage when that status directly affects the conditions under which s/he will serve the sentence.[88]  The sentencing court may, for example, devise a sentence of supervised release, including a period of rigorous home detention, for the noncitizen.

         

          See generally Chapter 10, infra, on handling a sentencing proceeding to minimize immigration consequences.

[88] United States v. Bakeas, 987 F. Supp. 44, 62 (D. Mass. 1997); see United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994); United States v. Farouil, 124 F.3d 838 (7th Cir. 1997); United States v. Simalavong, 924 F. Supp. 610, 613 (D. Vt. 1995).

DETENTION " CRIMINAL DETENTION " FEDERAL COURT " PRACTICE ADVISORY
A new practice advisory has been issued on the Bail Reform Act's provisions for non-citizen federal defendants, including an overview and explanation of 8 U.S.C. 3142, part of the Bail Reform Act of 1984, analysis on how noncitizen federal defendants can win bail in spite of their immigration status or immigration detainers, and presents arguments for release if ICE takes custody after a defendant pays criminal bail. http://www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_Federal_Bail_Advisory.pdf

DETENTION " CRIMINAL DETENTION " ICE DETAINER NOT SUFFICIENT ALONE TO JUSTIFY CRIMINAL COURT DENIAL OF PRETRIAL RELEASE
United States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. Nov. 22, 2017) (defendant facing federal prosecution for illegal reentry, and also subject to an ICE detainer, could not be denied pretrial release solely due to the risk that ICE would remove him before his criminal trial).

Lower Courts of Third Circuit

DETENTION - CRIMINAL BAIL CAN BE SET HIGHER FOR UNDOCUMENTED IMMIGRANT
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.

Fourth Circuit

DETENTION " IMMIGRATION DETENTION " IMMIGRATION HOLD DISQUALIFIED DEFENDANT FROM ELIGIBILITY FOR MANDATORY SUPERVISION PORTION OF SENTENCE
People v. Camp, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 273088 (4th Dist. Jan. 21, 2015) (immigration hold disqualified defendant from eligibility for mandatory supervision portion of realignment , so criminal court modified sentence, terminated mandatory supervision, and ordered defendant released to ICE custody).

Fifth Circuit

DETENTION " CHALLENGE TO DENIAL OF DRUG PROGRAM TO PRISONERS WITH ICE DETAINERS
Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. Jul. 18, 2012) (denial of drug rehabilitative treatment to prisoners with ICE detainers did not violate prisoner's due process rights or the equal protection clause; BOP policy was rationally related to BOP's legitimate interest in preventing prisoners from fleeing).

Seventh Circuit

SENTENCE " IMMIGRATION-RELATED CONDITIONS
United States v. Zamudio, 718 F.3d 989 (7th Cir. Jun. 4, 2013) (without imposing supervised release, criminal judge may not impose immigration-related conditions such as requiring defendant to report to ICE or to remain outside the United States if removed).

Other

DETENTION " IMMIGRATION DETENTION " ICE DETAINER CAN PREVENT TRANSFER FROM CUSTODY TO HALFWAY HOUSE
An ICE detainer can prevent a defendants placement in a halfway house. http://famm.org/wp-content/uploads/2013/08/FAQ-Halfway-House-4.24.pdf; http://www.fd.org/docs/training-materials/2010/MT2010/MT10_Practical_Tips_BOP.pdf