Criminal Defense of Immigrants
§ 6.49 A. During Pretrial Criminal Proceedings
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It is the policy of the DHS to assist criminal authorities, state and federal, to secure convictions and sentences of noncitizen defendants, so the DHS is generally willing to agree to transfer an immigration detainee from immigration custody to criminal custody so long as s/he is returned in custody to the DHS at the conclusion of the criminal proceedings. This is most easily accomplished at the request of the prosecutor, who has not only the collegial cooperation of a fellow law enforcement agency but also the power to prevent deportation on demand. See § 6.22(A), supra.
If the client is in the custody of the immigration authorities, but still present in the United States prior to deportation, the standard procedure for obtaining his or her presence at the post-conviction hearing would be to request that the judge presiding over the post-conviction hearing issue two court orders:
(1) A Request for Production of Prisoner, directed to the Officer in Charge of the immigration detention facility at which the client is being held, requesting him or her to release the client to the duly authorized Transportation Officer of the Sheriff’s Department, for transportation to the County Jail for an appearance in a criminal matter on the hearing date, in a specified department of the court, at a specified time. It should provide that, at the conclusion of the criminal proceedings, the client shall be returned to immigration custody. While this is technically a “request,” rather than a court order directing compliance, it has been successful on numerous occasions in motivating the immigration authorities to release the client to state custody. The client is held under a no-bail immigration hold and returned in custody to the immigration detention facility at the conclusion of the proceedings.
(2) An Order to Transport Prisoner, directed to the local Sheriff’s Department, ordering it to pick the client up, or arrange to have him or her picked up, at the immigration detention facility at which the client is being held, giving the address, bring him before the court on the hearing date, and thereafter return him or her or arrange for the return of the client to immigration custody at the detention facility where s/he was picked up. This is a standard form used frequently by the court on behalf of prosecution and defense whenever a state prisoner is desired as a witness in a criminal proceeding.
A court will sometimes balk at paying for the transportation of the noncitizen under these circumstances, although it should be strongly urged to do so. It is better for the client to be before the court; in the event the court would otherwise deny the client the right to be present, it is possible for the client’s family to pay a private agency to pick him or her up in custody from the immigration authorities and bring him or her to court. In the alternative, counsel could offer to pay the cost of the Sheriff’s transportation services. In one case, this service cost about $700 for a round trip between Eloy, Arizona, and Santa Cruz, California, plus $50 per day to house the client in the Santa Cruz County Jail, with a two-week estimate. The total cost offered was therefore $2100 in this particular case.
(3) A more formal process is to make Application for a Writ of Habeas Corpus Ad Testificandum, pursuant to 28 U.S.C. § 2241(c)(5). This is issued by the court for the presence of a material witness, which the client surely is concerning the factual matters encompassed in his or her petition for post-conviction relief. This writ actually directs the custodian of the client to produce the client before the criminal at a specified time and place and as ordered thereafter until his or her testimony is no longer required, at which time s/he is to be returned to federal custody. Upon proper application, the superior court issues the writ, which recites upon application by the client, and good cause appearing, “You are hereby commanded to produce the client, Alien Number A-NN NNN NNN, a detainee in DHS custody and confined at your [city] detention facility, located at [address], on the [date] at [time], in Department NN, of the [Superior Court] of [County], located at [address], then and there to appear as a witness in connection with the above-entitled matter, and thereafter to produce him or her as a witness before the court at such times as may be ordered by the judge presiding over those proceedings. Upon conclusion of his or her testimony, s/he is to be returned to the custody of the United States Department of Homeland Security. Expenses for transportation of the prisoner are to be paid by the County of [county].” The writ is executed by the judge presiding over the post-conviction proceedings. This writ must be accompanied by an Order to Transport Prisoner, as indicated in Subsection (b), supra.
If the post-conviction proceeding is in federal court, counsel can assert that the petitioner’s rights under 28 U.S.C. § 1654 to “plead and manage their own causes personally” require bringing him or her to the hearing, to avoid denying inmate plaintiffs the “adequate means of securing redress for violations of their constitutional rights.”
 The custodian of the client might be the Secretary of the Department of Homeland Security, and the Administrator of the detention facility, such as the Administrator of the Corrections Corporation of America, which operates the El Centro Facility located at 115 Imperial Avenue, El Centro, CA.
 See Price v. Johnson, 334 U.S. 266 (1948); Holt v. Pitts, 619 F.2d 558 (6th Cir. 1980).
Martinez v. United States, ___ F.3d ___, 2015 WL 4139844 (6th Cir. Jul. 10, 2015) (petitioner's claims fell within scope of federal habeas review of Mexican extradition request; Mexican arrest warrant was equivalent of United States indictment, and thus tolled five-year statute of limitations; lapse of time protections in U.S. law incorporated by lapse-of-time provision under Article 7 of United States-Mexico extradition treaty included protection against post-accusation prosecutorial delay found in Speedy Trial Clause of the Sixth Amendment; petitioner had speedy trial claim that was at least facially viable, and thus remand was warranted; and petitioner had Brady due process claim against U.S. government that was at least facially viable with regard to non-disclosure of U.S. consular records, and thus remand was warranted).
DETENTION " RELEASE FROM DETENTION TO PURSUE PADILLA CLAIM
Peguero v. Sabol, ___ F.Supp.2d ___ (M.D.Pa. May 16, 2011) (Because Peguero is awaiting judicial review of his final removal order, we find that his detention is authorized under 8 U.S.C. 1226(a), rather than 1226(c) or 1231. The Attorney Generals authority to detain Peguero will continue to rest with 1226(a) unless and until the Second Circuit rejects his final petition for review and he enters his removal period. Therefore, the Court shall conduct a bond hearing at which the government must justify Pegueros continued detention under 1226(a) by demonstrating that he is a danger to the community or a risk of flight.).
CRIMINAL DEFENSE OF IMMIGRANTS - PROSECUTION CONTROL OVER DEPORTATION
The federal prosecutors control whether a federal criminal defendant gets physically removed from the United States. 8 C.F.R. 215.3(g) ("[A]ny alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part."); 8 C.F.R. 215.3(g); 22 C.F.R. 46.3(g) (same). After receiving instructions from the United States Attorneys office not to remove a defendant, ICE should issue a Departure Control Order. If a federal judicial officer is worried that the defendant would not be available for trial because ICE would remove the defendant from the United States, defense counsel can remind the court that the prosecutor has the power under this regulation to keep the defendant in the United States.
DETENTION - CRIMINAL DETENTION AND RELEASE OF NONCITIZEN FEDERAL DEFENDANTS UNDER FEDERAL BAIL REFORM ACT
Thanks to Ingrid Eagly and Cecilia Wong, who have had success securing release for federal noncitizen defendants under the Federal Bail Reform Act, for this analysis:
The United States Attorney has control over whether a federal criminal defendant gets physically removed from the United States. Pursuant to 8 C.F.R. 215.3(g). "[A]ny alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part." 8 C.F.R. 215.3(g); 22 C.F.R. 46.3(g) (same). After receiving instructions from the United States Attorney's Office not to remove a defendant, ICE should issue a departure control order. If a federal judicial officer is worried that the defendant would not be available for trial because ICE would remove the defendant from the United States, defense counsel can remind the court that the prosecutor has the power to keep the defendant in the United States.
The federal bail statute contains specific provisions that speak to the relationship between custody in the criminal case and custody in the immigration case. 18 U.S.C.A. 3142(d) appears to limit when a federal judicial officer may permit a defendant to be released to ICE custody. The statute provides that the federal judicial officer may give 10 days for ICE to order the detention of a defendant and to take the defendant into custody. If ICE fails to do so, "such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." See also U.S. v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001).
A federal district court in Florida has taken the view that its decision to release a criminal defendant awaiting trial under 18 U.S.C.A. 3142(d) supersedes the INS' authority to take a criminal defendant into custody. See also U.S. v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001).Under this decision, the ICE's authority to detain a noncitizen pending federal criminal charges is subject to the requirements of the statutes governing pre-trial release of a federal defendant. See 18 U.S.C.A. 3141 to 3142.