Criminal Defense of Immigrants
§ 6.51 C. Entry into the United States to Attend Criminal Proceedings
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If a criminal defendant is outside the United States, it is possible to seek humanitarian parole as a means to enter the country to stand trial, to attend a probation interview, to attend sentencing hearing, or to appear to serve a sentence. See § 15.14, infra. Such an entry would not be within the terms of a non-immigrant visa, such as a non-immigrant business visa or be considered a formal “admission” for immigration purposes. The defendant needs permission from the DHS to be paroled into the United States for those purposes. Myra Moore is the ICE point of contact for public benefit parole requests, of whom counsel may make a request for parole that would allow the defendant temporarily to enter the United States for these legal purposes. For future trips, after sentence has been completed, the defendant may qualify for a nonimmigrant waiver of inadmissibility. See § 24.30(E), infra.
 Mansour v. Gonzales, 470 F.3d 1194, (6th Cir. Dec. 14, 2006) (noncitizen who was paroled into the United States to stand trial in a criminal case did not make a lawful admission, for purposes of becoming eligible to apply for INA § 212(c) relief or making a motion to reopen removal proceedings), citing Simeonov v. Ashcroft, 371 F.3d 532, 536 (9th Cir. 2004) (holding that a noncitizen paroled into the United States pending completion of exclusion proceedings did not lawfully enter the United States and was therefore ineligible for withholding of deportation).
 INA § 101(a)(15)(B), 8 U.S.C. § 1101(a)(15)(B).
 She may be reached at (202) 732-8168.
 INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).
CRIM DEFENSE " LITIGATION " EVIDENCE " GOVERNMENT DEPORTATION OF EXCULPATORY WITNESS VIOLATED DEFENDANTS RIGHT TO PRESENT A DEFENSE
United States v. Carmen, 697 F.3d 964 (9th Cir. Sept. 14, 2012) (reversing conviction for bringing in illegal aliens without presentation, in violation of 8 U.S.C. 1324(a)(2)(B)(iii), where prosecution violated defendant's opportunity to present a defense by deporting a witness it knew could give exculpatory evidence; the defendant satisfied the two-part test to evaluate whether the deportation amounts to a constitutional violation, as he has shown that the government acted in bad faith and that the deportation of the witness prejudiced his case; and because a jury could have been swayed by the deported alien's eyewitness account, the constitutional errors were not harmless beyond a reasonable doubt).
CRIM DEF " EXTRADITION
Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. Jun. 8, 2012) (vacating grant of habeas corpus to a noncitizen challenging extradition to the Philippines on grounds that it would violate his rights under the Convention Against Torture and the Fifth Amendment's Due Process Clause, and remanding for a declaration from the Secretary of State that she has complied with her obligations under the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. 1231, where the record lacks any sufficient basis in the record to review the district court's order granting petitioner's release).
CRIMINAL DEFENSE - EVIDENCE - DEPORTED WITNESS
United States v. Yida, ___ F.3d ___, 2007 WL 2325143 (9th Cir. Aug. 16, 2007) (court order excluding the former trial testimony of a now-deported witness in defendant's retrial on drug-related charges is affirmed because even though the government acted in good faith, it deported the witness without informing the court or the defense, without taking a video deposition, and without having any means of compelling his return, did not use reasonable means to procure the witness's attendance at defendant's retrial and did not establish that the witness was unavailable under Federal Rule of Evidence 804(a)).
CRIM DEF " EXTRADITION
Extradition cases are listed on the following blog, which can be searched by country for unreported cases. Thanks to Linda Ramirez. http://obtainingforeignevidence.blogspot.com/
CRIM DEF - EXTRADITION - RIGHT TO COUNSEL
Excerpt from "International Extradition - An Overview of Law And Procedure", By Theodore Simon.
"Policy and rules are somewhat in tension regarding extradition and the right to counsel. On the one hand, presence of counsel is commonplace during extradition proceedings; counsel will be provided, and expenses paid, for counsel, if requested. See also De Silva v. Di Leonardi, 181 F.3d 865, 868-69 (7th Cir. 1999); Chewning v. Rogerson, 29 F.3d 418, 419 (8th Cir. 1994). On the other hand, a number of decisions have held that there is no constitutional right to counsel in such proceedings. These rulings have usually been in response to habeas corpus challenges to the proceedings claiming ineffective counsel. See, e.g., De Silva, 181 F.3d at 868-69; Lopez-Smith v. Hood, 951 F.Supp. 908, 912-13 (D.Ariz. 1996).
It has repeatedly been held, when raised as an issue, that a relator does not have a constitutional right to counsel at an extradition hearing, Taylor v. Jackson, 470 F.Supp. 1290, 1992 (S.D.N.Y. 1979), since the Sixth amendment applies only to "criminal prosecutions" and international extradition proceedings have been held not to be within the scope of the amendment. Jhirad v. Ferrandiner, 536 F.2d 478, 485 n.9. (2d Cir.) cert. denied, 429 U.S. 988 (1976); United States v. Galanis, 429 F.Supp. 1215, 1224-25 (D. Conn. 1977); De Silva, 181 F.3d 865 at 868; Lopez-Smith, 951 F.Supp. at 912."
CRIM DEF"PAROLE WITNESSES INTO THE UNITED STATES TO TESTIFY IN A CRIMINAL CASE
A person seeking to reenter to testify could apply for a nonimmigrant visa. By regulation, and in order to avoid criminal liability under INA 236, 8 U.S.C. 1326, they would need consent to reapply. A waiver of inadmissibility, under INA 212(d)(3)(A), would waive inadmissibility under INA 212(a)(9)(C). It might be faster to obtain parole into the United States to testify as a witness, but (a) it might be beneficial in other ways to have obtained consent to reapply, and (b) an individual can affirmatively schedule a nonimmigrant visa interview, which might be handy if a litigant wants to show that one party is taking unfair advantage of the unavailability of a witness. Thanks to Chuck Roth. If the government refuses to agree to a humanitarian parole to allow a witness to enter the United States to testify, defense counsel in the criminal case could file a motion to dismiss for violation of Due Process, Equal Protection, and Compulsory Process.
DETENTION " TRANSPORTATION OF DEFENDANT FROM ICE CUSTODY TO CRIMINAL COURT
In Arizona, attorneys for the Florence Project have heard ICE litigation and ERO officials state that they have a flat policy not to transport an ICE detainee to criminal court for a criminal case even if the state court issues a writ of habeas corpus ad prosecandem. In their experience, however, DHS does seek administrative closure and transports the person to criminal court when they want the client prosecuted. Thanks to Thalassa Kingsnorth, Eloy Staff Attorney Florence Immigrant & Refugee Rights Project.