Criminal Defense of Immigrants

(B)  Client Has Illegally Returned to United States.  It is very dangerous for a client who has been deported, especially after a criminal conviction, to illegally re-enter the United States.  See § 6.31, supra.[249]  If such a person appears in a state post-conviction proceeding, especially where issues regarding the immigration consequences of a criminal conviction are raised, there is a grave risk that the prosecution will become aware of the client’s immigration status, as well as the criminal history, and conclude that the client has committed a serious federal felony: illegal re-entry after deportation.  If the prosecution makes a simple phone call to the immigration authorities, at the next court appearance, the client may find s/he is under federal arrest and charged in United States District Court with illegal re-entry after deportation.

It is even problematic to obtain a declaration from a client under these circumstances.  The declaration, at the foot, swears that the client signed the declaration on a certain date, at a certain place.  If that date is after the client’s deportation, and if the place is within the United States, the declaration on its face establishes that the client illegally re-entered the United States, and could provide powerful evidence that the client has committed a serious federal felony.

It is better to recommend that such a client return to his or her home country, from where (a) post-conviction counsel can obtain a notarized declaration under penalty of perjury for use in the post-conviction proceeding, and (b) immigration counsel can seek to parole the client into the United States temporarily on a non-immigrant basis as indicated in the preceding subsection.

[249] See INA § 276, 8 U.S.C. § 1326, concerning the federal criminal penalties for illegal re-entry after deportation.