Criminal Defense of Immigrants


§ 6.28 8. Removal Proceedings for Noncitizens in Prison

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Removal proceedings may be conducted in some prisons before certain noncitizens have been released from criminal custody (supposedly for the purpose of avoiding the need for further detention by the DHS).[1]  Noncitizens subject to these proceedings are those deportable for conviction of:


                (1) an aggravated felony offense;[2]

                (2) a controlled substances offense;[3]

                (3) a firearms offense;[4] or

(4) two or more crimes of moral turpitude for which sentences of one year or more could have been imposed.[5]


These proceedings are supposed to be conducted in the same manner as proceedings conducted in immigration court, except that a noncitizen convicted of an aggravated felony “shall be conclusively presumed to be deportable from the United States.”[6]  Even if the proceeding results in an order of removal, the noncitizen cannot generally be deported until after his or her release from criminal custody.[135]  But see § 6.26, supra.  Special regulations concerning in-prison removal proceedings have not been promulgated. 

[136] INA § 238(a), 8 U.S.C. § 1228(a).

[137] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[138] INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B).

[139] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[140] See INA § 238(a)(1), 8 U.S.C. § 1228(a)(1).

[141] INA § 238(c), 8 U.S.C. 1228(c).

[135] INA § 241(a)(4)(A), 8 U.S.C. § 1231(b)(3)(B) (“Except as provided in section 343(a) of the Public Health Service Act (42 U.S.C. 259(a)) and paragraph (2), 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.”).