Criminal Defense of Immigrants


§ 6.32 (A)

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(A)  In General.  The border patrol is beginning to arrest noncitizens at the border who have a state or federal criminal arrest warrant outstanding.  The DHS computer systems are succeeding in accessing state and federal criminal warrants as part of their sweeps, and the Border Patrol is holding the noncitizens in custody for pick up by law enforcement from the courts issuing the warrants.  They accompany the noncitizens with immigration detainers, if there are grounds on which to detain the noncitizens, so after completion of the criminal case and sentence, if any, the noncitizens are returned in custody to the immigration authorities for possible removal proceedings.



Second Circuit

Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (neither a PSR, nor a statement of restitution, are included in the record of conviction; "Though the Shepard Court did not address the issue of a restitution order, its logic clearly excludes such a document [from the record of conviction]. The restitution set by a judge is based on a loss amount established by a preponderance of the evidence and need not be tied to the facts admitted by a defendant's plea. See 18 U.S.C. 1664(e) (Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.); United States v. Reifler, 446 F.3d 65, 118 (2d Cir. 2006) (rejecting defendants' contentions that the orders requiring them to make restitution for loss amounts not admitted in their plea allocutions violated their rights under the Sixth Amendment as enunciated in [United States v.] Booker, [543 U.S. 220 (2005) ], because the principle that jury findings, or admissions by the defendant, establish the maximum authorized punishment has no application to MVRA orders of restitution). In other words, the amount of restitution is not constrained by facts on which the plea necessarily rested."; "the BIA may rely only upon facts actually and necessarily found beyond a reasonable doubt by a jury or judge in order to establish the elements of the offense, as indicated by a charging document or jury instructions. For convictions following a plea, the BIA may rely only upon facts to which a defendant actually and necessarily pleaded in order to establish the elements of the offense, as indicated by a charging document, written plea agreement, or plea colloquy transcript."), disagreeing with Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006).