Criminal Defense of Immigrants


§ 6.48 VIII. Bringing Client from Immigration to Criminal Custody

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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.



Fourth Circuit

Zhenli Ye Gon v. Lynch, ___ F.Supp.3d ___, 2016 WL 1384774 (D. Columbia Apr. 7, 2016) (where a magistrate judge issued a certificate of extraditability approving the proposed extradition of Zhenli Ye Gon from the United States to Mexico, the court dismissed the Petition for Writ of Error Coram Nobis, because there is no authority to suggest that coram nobis relief is available under these circumstances).
Nezirovic v. Holt, ___ F.3d ___, 2015 WL 777540 (4th Cir. Feb. 25, 2015) (affirming extradition of alien to Bosnia and Herzegovina for alleged war crimes against civilians during Bosnian War, and denying habeas corpus, because war crimes allegedly committed by alien did not fall within scope of political offense exception to extradition).

Fifth Circuit

United States v. Tirado-Tirado, __ F.3d __, 2009 WL 711921 (5th Cir. Mar. 19, 2009) ("The measures taken by the government in this case do not constitute "good faith" or "reasonable" efforts to secure the physical presence of Garay-Ramirez at trial. The government failed to make any concrete arrangements with Garay-Ramirez prior to his deportation, and it delayed attempting to contact him about making such arrangements until shortly before trial. Garay-Ramirez was not served with a subpoena or given any sort of written notice regarding the trial prior to being deported. He appears to have been only orally informed that his testimony would be required if the case went to trial. Cf. United States v. Calderon-Lopez, 268 Fed.Appx. 279, 289 (5th Cir.2008).").

Sixth Circuit

Basic v. Steck, ___ F.3d ___, 2016 WL 1460549 (6th Cir. Apr. 14, 2016) (Secretary of State was empowered to extradite United States citizens to Bosnia, provided that other requirements of treaty between United States and Bosnia were met, and decision from Bosnian Court that included what appeared to be finding of probable cause and order for detention of naturalized citizen of United States, which constituted valid arrest warrant under Bosnian law, satisfied requirement of duly authenticated copy of the warrant of arrest under extradition treaty).
Pola v. United States, ___ F.3d ___, ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (Although 2255 petitioners do not have an absolute right to attend evidentiary hearings, the district court may not prevent Pola from testifying in support of his claim. Sanders v. United States, 373 U.S. 1, 20"21, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). It appears there are at least two possible solutions. Pola may request that the Attorney General authorize Pola's admission to the United States, subject to conditions, for the limited purpose of attending the evidentiary hearing. See 8 U.S.C. 1182(d)(3)(A). We also see no reason why the district court cannot use telecommunication and video technology so that Pola may testify and appropriately participate. We leave it to the district court in the first instance to determine how best to proceed with a 2255 evidentiary hearing.).

Ninth Circuit

Patterson v. Wagner, ___ F.3d ___, 2015 WL 1963541 (9th Cir. May 4, 2015) (order certifying petitioner for extradition to South Korea on murder charge did not violate the 1998 extradition treaty's time-of-lapse provision, or the double-jeopardy provision of the Status of Forces Agreement (SOFA) governing American military personnel).
United States v. Medina-Villa, 570 F.3d 213 (9th Cir. June 23, 2009) ("the right to retain deportable witnesses is limited to the right to retain witnesses who are material and favorable to the defense"; the defendant must also show that the Government acted in bad faith by deviating from regular deportation procedures or attempted to gain a tactical advantage and must establish prejudice by showing the testimony would have been material and favorable, not merely cumulative.)

Attorney General

J. Semmelman & B. White, Obtaining Bail in International Extradition Cases, The Champion 34 (Natl Assn of Crim. Defense Lawyers Jan.-Feb. 2011).


8 CFR 215.3(g) (defines an alien facing criminal charges as an alien whose departure "would be prejudicial to the interests of the United States," and, therefore, one whose removal would be illegal in violation of INA 215(a)).

ICE general counsel, however, has announced ICE is refusing to be bound by this regulation. ICEs interpretation is at odds with the plain language of 8 CFR 215.3(g) and the operative language of 215.2. There is no mention of wartime or national emergency in the regulations. And as Ingrid Eagly of UCLA points out, the INS deleted the prior regulations, which did mention wartime and national emergency exceptions, and specifically removed those limitations on the scope of the departure control order. 45 FED. REG. 65515 (Oct. 3, 1980). See United States v. Lozano-Miranda, No. 09-CR-20005, 2009 WL 113407 at *3 & n.13 (D. Kan. Jan. 15, 2009) (rejecting prosecutions argument that defendant posed flight risk because of ICE detainer and noting that 8 C.F.R. 215.3 prevents departure unless prosecution consents); United States v. Garcia-Gallardo, No. 09-CF-20005, 2009 WL 113412 at *2 & n.13 (D. Kan. Jan. 15, 2009) (same); United States v. Perez, No. 08-CR-20114, 2008 WL 4950992 at *2 (D. Kan. Nov. 18, 2008) (same). Thanks to Dan Kesselbrenner.
Immigration and Customs Enforcement (ICE) refuses to be bound by 8 C.F.R. 215.3(g) (requiring ICE not to deport persons who are criminal defendants or witnesses). letter 2-20-09.pdf

Thanks to Gragert Hiebert Gray & Link