Criminal Defense of Immigrants

It is important, if at all possible, to arrange for the client to be present in court with counsel (and many of the client’s family and friends), at the time the criminal court hearings are conducted.  This is in order to personalize the client, introduce him or her to the prosecutor if possible, show how much the client cares about remaining in the United States, and show the reliability that comes from the client being a free person in the community.

There are several circumstances in which it may be quite difficult to obtain the client’s presence in court for the hearing: (1) if the client is in immigration custody; (2) if the client has already been deported; and (3) especially if the client has already been deported but has returned illegally.  It is possible in some cases to obtain the client’s presence, however — even in these difficult circumstances — and this should be attempted.

                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.  See § 6.36, supra.  The DHS decides where the client will be detained, and 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. 

                If the client is held locally, it is an easy matter to obtain the client’s presence in criminal proceedings, either pretrial proceedings or post-conviction proceedings, since the detention facility is near the criminal court and the jailers are accustomed to bringing detainees to criminal court.  If the client is detained in an immigration detention facility at a great distance from the criminal court, it may be far more difficult to obtain transfer of the noncitizen defendant from immigration custody to criminal court and back after the criminal proceedings have concluded.