Criminal Defense of Immigrants

Once a client has been released from criminal custody, into immigration custody, s/he may be transferred to a close or distant immigration detention facility.  The DHS decides where a noncitizen will be detained.  In some cases a noncitizen arrested by the DHS in California, for example, may be transferred to a detention center in Louisiana.[1]  This transfer means that the noncitizen will be subject to the harsher interpretation of the immigration laws that prevails in the Fifth Circuit, rather than the generally more lenient rules of the Ninth Circuit.[2]  At least one court has found that the DHS may also set, and redraw, the district lines which determine where a noncitizen will be detained to subject noncitizens arrested within one federal circuit to deportation proceedings in another.[3]  It is extremely difficult to convince a court to intervene in this decision.

It is also possible for the DHS to maintain the client in immigration custody in the local criminal facilities under contract with the DHS.  Counsel may wish to use ongoing criminal or post-conviction proceedings to encourage the DHS to keep a noncitizen client in a local facility.  See § 6.48, infra.

[150] In Committee of Central American Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986), the court refused to restrain transfer of unrepresented noncitizens to remote areas where their access to counsel may be limited.  The decision might be different if such transfer affected due process rights by “impairing an established-ongoing attorney-client relationship.”  Where a person is transferred to a remote location, the immigration attorney can petition for a change of venue to a closer urban center, especially if the client makes bond, in which case venue is routinely changed. 8 C.F.R. § 1003.20.

[151] See § 15.7, infra.

[152] Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following APA requirements of notice and comment, redetermine detention boundaries, even to the extent that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit; noncitizens arrested in Idaho and Montana, within the Ninth Circuit, may be placed in removal proceedings in Colorado, in the Tenth Circuit, and therefore subject to Tenth Circuit law).