Criminal Defense of Immigrants


§ 6.32 (B)

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(B)  Travel Advisory.  If a person with lawful status travels outside the country, but has a pending arrest warrant for a criminal charge, and attempts to return, ICE may parole them into the United States, turn them over in custody to the jurisdiction which issued the warrant, and then lodge an immigration detainer against them.  If the person is then released by the criminal court on bond or O.R., the person is then released directly to ICE custody.  The immigration authorities will often release them pending trial if there are assurances that ICE will be notified of each court date and if the client is not subject to mandatory immigration detention.  Noncitizen clients with criminal issues, i.e., prior criminal history or current criminal warrants outstanding, must therefore be advised not to leave the United States without first checking carefully with an immigration lawyer who has experience with criminal issues.  The grounds of inadmissibility are in many cases broader than the grounds of deportation, and the burden of proof is on the noncitizen, not on the government, to show s/he is admissible to the United States.



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).