Criminal Defense of Immigrants


§ 6.34 A. Importance to Immigrant Defendants

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Mandatory immigration detention can have a devastating effect on a client’s life and the life of his or her innocent family.  Because immigration custody is so difficult to tolerate, many immigrants who are not deportable at all are erroneously deported because they cannot stand the harshness of the immigration detention during the months or years that may elapse before the immigration or federal courts eventually exonerate them.  It is therefore of the greatest importance for criminal counsel if possible to avoid a disposition in the criminal case that triggers mandatory deportation. 




Ninth Circuit

Castaneda v. United States, 546 F.3d 682 (9th Cir. Oct. 2, 2008) (allowing family to sue DHS for death of immigration detainee; "To describe the allegations in the complaint as averring mere "malpractice" is to miss the point. Castaneda was not a walk-in patient at Defendants clinic; neither are Defendants merely alleged to have misread a chart or fumbled a scalpel. The ordinary doctor, no matter how careless, does not hold her patients under lock and key, affirmatively preventing them from receiving the medical care they need and demand. Even when denying his requests for a biopsy in the fall of 2006, DHS officials were aware that Castaneda "is not able to be released to seek further care due to mandatory hold and[,] according to ICE authorities, may be with this facility for a while." The Kafkaesque nightmare recounted in Plaintiffs complaint, which we assume here to be true, draws its force not only from Defendants alleged deliberate indifference, but also from Castanedas state-imposed helplessness in the face of that indifference. The element of state coercion transforms this into a species of action categorically different from anything Congress would likely term "malpractice."")


Nov. 7, 2007 memos encouraging ICE to exercise prosecutorial discretion when apprehending certain mothers.
Detention Report: Behind Bars "Between March and July 2006, in response to numerous complaints about conditions of detention, the ACLU-NJ undertook a series of interviews with detainees in the county jails in an effort to shed light on the conditions of confinement. The project resulted in a [May 2007] report, Behind Bars: The Failure of the Department of Homeland Security to Ensure Adequate Treatment of Immigration Detainees."

GAO on Alien Detention Standards, Telephone Access Problems GAO, July 6, 2007: "During field visits to 23 detention facilities, we observed systemic problems with the pro bono telephone system at 16 of 17 detention facilities that use this system."