Criminal Defense of Immigrants


§ 6.21 1. General Rule

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The INA provides the noncitizen must complete service of the criminal sentence before being deported:  “the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment.  Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal.”[1] 


                Despite this statute, the criminal sentencing judge may decide to impose a shorter sentence if convinced that the defendant will surely be deported upon the conclusion of that sentence.  The prosecutor may agree with this approach, in order to avoid unnecessary expenditure of public funds on incarcerating a person who, if not incarcerated, would permanently be deported from the United States and who therefore would not be present to cause any risk to public safety or workload for the criminal courts and prosecutors.  On the other hand, if the court and prosecutor believe the defendant if deported would speedily and illegally return to the United States, this argument would hold less weight.


                The law does allow a noncitizen who has been ordered removed to “self-remove” at his or her own expense to any destination s/he chooses after a removal order has been granted.[2]  See § § 15.31-15.33, infra.  Moreover, a noncitizen can always leave the United States voluntarily prior to the issuance of a removal order.  See § 15.30, infra. 


[89] INA § 241(a)(4)(A), 8 U.S.C. § 1231(a)(4)(A).

[90] See 8 C.F.R. § 241.7, 67 Fed. Reg. 39260 (June 7, 2002) (“A district director . . . may permit an alien ordered removed . . . to depart at his or her own expense to a destination of his or her own choice.  Any alien who has departed from the United States while an order of deportation or removal is outstanding shall be considered to have been deported, excluded and deported, or removed, except that an alien who departed before the expiration of the voluntary departure period granted in connection with an alternate order of deportation or removal shall not be considered to be so deported or removed.”).