(C)  Undocumented Status.  In some states, the court may consider a defendant’s status as an undocumented noncitizen when deciding whether to grant probation.[83]  A state residential drug program, such as the California Rehabilitation Center, may properly exclude an undocumented noncitizen because s/he would probably not be available to complete the outpatient component of the program.[84]  For immigration purposes, this type of commitment may trigger conduct-based deportability or inadmissibility in any event because it defines the individual, in effect, as a “drug addict.”  See § § 21.10 (inadmissibility), 21.15, infra (deportability).  Similarly, some states’ no-jail drug programs, which are mandatory in general, are not mandatory for a defendant who was an undocumented noncitizen with a substantial criminal history, because it was impossible to condition probation on completion of a drug treatment program in view of the substantial likelihood that the defendant would be deported without being able to complete the program.[85]

 

                A number of courts, however, have held that undocumented noncitizens can qualify for all sorts of civil benefits, despite their status, because there is no assurance that they will in fact be deported.[86]  For example, they may adjust status and become lawful permanent residents.

 

                Counsel can contest these sorts of disqualifications by submitting evidence that the particular defendant will indeed be available to complete the program because s/he will be released from immigration custody after appearing before an immigration judge.

[83] People v Sanchez, 190 Cal.App.3d 224, 235 Cal.Rptr. 264  (1987) (probation denied).

[84] People v Arciga, 182 Cal.App.3d 991, 227 Cal.Rptr. 611 (1986).

[85] People v Espinoza, 107 Cal.App.4th 1069, 132 Cal.Rptr.2d 670 (2003).

[86] Caballero v. Martinez, 186 N.J. 548, 897 A.2d 1026, 1033 (May 18, 2006) (undocumented noncitizen can be a “resident” for purposes of uninsured motorist claim: “Consequently, the fact that an undocumented alien may some day be forced to return to his or her homeland does not necessarily defeat the intent to remain. That is especially true in light of the uncertain nature of deportation. See St. Joseph’s, supra, 688 P.2d at 991 (finding illegal aliens can be “residents” under emergency care statute because “‘there is no assurance that a [person] subject to deportation will ever be deported’”) (alteration in original) (quoting Plyler v. Doe, 457 U.S. 202, 226 (1982)); Das, supra, 254 N.J.Super. at 199, 603 A.2d 139 (commenting on “the uncertainty of knowing when, if ever, deportation proceedings will be commenced”).”)

Third Circuit

CRIM DEF - SENTENCE - SUPERVISED RELEASE - DISTRICT COURT HAS NO AUTHORITY TO TOLL PERIOD OF SUPERVISED RELEASE AFTER DEPORTATION UNTIL RETURN
United States v. Cole, 567 F.3d 110 (3d Cir. May 20, 2009) (district court had no authority to order that the supervised release term of illegal reentry sentence be tolled as long as defendant remained outside of the United States following his possible removal after his prison term, because tolling is not a "condition" of supervised release within the meaning of 28 U.S.C. 3583(d)).