Criminal Defense of Immigrants

Congress allows certain nonviolent criminal offenders with removal orders to avoid serving their complete sentences by accepting deportation.[1]   Some prisoners will benefit from this by being able to spend less time incarcerated.  Practitioners should carefully consult with the client, however, to make sure that the person is not giving up some immigration remedy that might be even more valuable to the person than early release.

                An offender who is allowed to accept removal before completion of his or her sentence under this section, is removed, and then returns or attempts to return illegally faces up to ten years in prison. [2]  Before his release, s/he must be informed of the penalties relating to illegal re-entry, “particularly the expanded penalties for aliens removed” under this section.[3]   Under the statute, the possibility of early release does not create a private right of action for the prisoner.[4]

                Different rules govern removal of state and federal prisoners.  A noncitizen in state custody is eligible for removal prior to completion of her or his sentence if the “official exercising authority” over the noncitizen requests in writing that the Attorney General remove the state prisoner.  The Attorney General will act favorably on the request if the noncitizen is serving time for a nonviolent offense that is not a firearm trafficking or other firearm aggravated felony offense.[5]

                A noncitizen in federal custody is eligible for release if the Attorney General determines that the noncitizen is serving time for a nonviolent offense other than a drug trafficking, firearm trafficking, firearm aggravated felony, child pornography, national security, or an alien smuggling or harboring offense.[6]

[122] See INA § 241(a)(4)(B), 8 U.S.C. § 1231(a)(4)(B).  See generally D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 8:23 (West 2007).

[123] INA § 276(c), 8 U.S.C. § 1326(c) (“Any alien deported pursuant to Section 242(h)(2) who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s re-entry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the re-entry of deported aliens as may be available under this section or any other section.”).  Note that INA § 242(h)(2) no longer exists.  The nearest equivalent is the current INA § 241(a)(4)(B), 8 U.S.C. § 1231(a)(4)(B).

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

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

[126] INA § 241(a)(4)(B)(ii), 8 U.S.C. § 1231(a)(4)(B)(ii) provides that the conviction cannot be for a firearm aggravated felony offense pursuant to INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E).  See § 19.70, infra, for discussion of this ground.

[127] INA § 241(a)(4)(B)(i), 8 U.S.C. § 1231(a)(4)(B)(i) provides that the noncitizen must be “confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling, or harboring of aliens or an offense described in section 101(a)(43)(B), (C), (E), (I), or (L) . . . .”  INA § 101(a)(43)(B), (c), (E), (I), or (L), 8 U.S.C. § 1101(a)(43)(B), (C), (E), (I), or (L).