Criminal Defense of Immigrants
§ 10.53 C. Immigration Advice
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On the termination of the client’s criminal case, counsel should describe the immigration proceedings that will follow, and give basic advice on how to meet them. Federal law generally requires the noncitizen to complete the state sentence before being released into DHS custody to face deportation proceedings. See § 6.21, supra.
Chapter 15, infra, the Immigration Overview, contains the information counsel needs to alert the defendant to what s/he will face. This description of the legal process an immigrant faces in deportation court provides an introduction to this area of law and gives sufficient detail to permit criminal counsel to explain to the client what the client will face after the criminal case is over, the sentence has been served, and the client is transferred into DHS custody under an immigration hold to face the prospect of deportation.
As a result of greater attention to the problem of “criminal immigrants,” the DHS is now successfully identifying all, or nearly all, deportable or excludable noncitizens before their release from criminal custody. This is particularly true since September 11, 2001. Counsel must assume that the government is certain to identify all potentially deportable noncitizens in local, state, or federal criminal custody. It will then lodge an immigration hold against them, usually a month or two before their release date from criminal custody.
Within 48 hours after release from state custody, the DHS must pick up the client. If not, the state authorities must release him or her to the street despite any immigration hold. The client is transferred into immigration custody and often sent to a federal holding facility faraway, less often to local state facilities where the noncitizen is held under contract with the government.
Many clients are ineligible to have bond set, especially aggravated felons who have not entered the U.S. lawfully. See § 6.37, supra. The DHS will accept all cash without fee. Bond requires real estate or full cash collateral, plus 10% per year to the bondsperson. Once released, the client can fight deportation or exclusion in immigration court, often for a period of a year or more.
If the client is ineligible for release on bond, or if the client cannot make bond, the possibilities of deportation or exclusion defense are far slimmer since the client is less likely to be willing to remain incarcerated during lengthy immigration court proceedings. See Chapter 6, supra.
If the person has been convicted of an “aggravated felony,” illegal re-entry after deportation is punishable by up to 20 years in federal prison. Counsel should warn the client of this possibility. United States Attorneys are identifying and prosecuting these offenders more and more frequently. The plea bargains for first-offense illegal re-entry after deportation after an aggravated felony conviction range from 30 to 75 months or so, depending on the jurisdiction and the defendant’s deportation history and criminal history score. See § 15.39, infra.
 If counsel enters an appearance with the DHS, the DHS is prevented from interrogating the client without counsel being present (or the fruits of the interrogation may be suppressed).
 INA § 276(b)(2),8 U.S.C. § x1326(b)(2).
PRACTICE ALERT: WALSH ACT CIVIL COMMITMENT CREATES CATCH-22 FOR INMATES IN BOP TREATMENT PROGRAMS
The Adam Walsh Act created a new statute for "civil commitment of a sexually dangerous person" and, with it, some difficult issues when advising your clients. Under 18 U.S.C. 4248, the Attorney General and/or the Director of the Bureau of Prisons may certify as a "sexually dangerous person" any person who is in the custody of the Bureau of Prisons or deemed incompetent or against whom all criminal charges have been dismissed solely because of the person's mental condition. "Sexually dangerous" means that the defendant has engaged or attempted to engage in sexually violent conduct or child molestation and that he suffers from a serious mental illness, abnormality or disorder resulting in serious difficulty refraining from sexually violent conduct or child molestation if released. As the defendant approaches his sentence release date, the government can move for civil commitment under this new act, possibly for life. Once a certificate has been filed, the defendant is entitled to an adversarial hearing, but must remain in custody pending resolution of the issue. If, after the hearing, the court finds by clear and convincing evidence that the defendant is sexually dangerous, the Attorney General must either commit him to state custody for treatment or place him in a "suitable facility" until either the state agrees to take him or he no longer qualifies as "sexually dangerous."
The BOP has already begun certifying inmates under the statute. For these certifications, the BOP has been relying in part on statements made by the inmates during BOP treatment programs, particularly the Sex Offender Treatment Program at Butner, NC, and the Sex Offender Management Program at Devens, MA. While the Butner Treatment Program is voluntary, inmates are placed involuntarily into the Devens Sex Offender Management Program. Both programs have evaluation and treatment components that may involve the disclosure of undetected offenses and bad thoughts. Refusing to participate in any part of the Devens program may carry harsh consequences, such as denial of halfway house placement, placement in the least desirable housing (even less desirable than usual), and a low-pay job (even lower than usual).
At a minimum, clients charged with sex offenses or with any hint of sexual impropriety in their record should be advised that anything they disclose in the BOP's sex offender programs (or in the sentencing process) may later be used to commit them once the criminal sentence is fully served. Counsel should consider whether to advise clients to avoid the voluntary Butner program and remain silent (at least to some degree) in the mandatory Devens program. (Adapted from materials written by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel) For more information, please visit http://www.nacdl.org/public.nsf/legislation/sexoffender?OpenDocument