Criminal Defense of Immigrants
§ 11.44 v. The Client Has No Current Aggravated Re-entry Exposure
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If the client has suffered an aggravated felony conviction, been deported, and has then returned illegally, it is extremely difficult to attempt to clear criminal convictions or sentences because the client is subject to arrest on sight by the FBI and DHS for illegal re-entry. This violation is a federal criminal offense carrying a maximum of 20 years in custody. Federal prosecutors are currently granting plea bargains requiring service of between two and a half to six years in prison or so in these cases, depending on the jurisdiction and on the extent of the client’s prior criminal and deportation history.
If the client signs a declaration, it must include the date and city in which it was signed, which, if signed in the United States, on its face provides proof of the client’s commission of illegal re-entry. Alternatively, the client could leave the country and sign the notarized declaration abroad, but then would not be present in the United States to lend life and substance to the post-conviction litigation in court (at least not without committing a fresh illegal re-entry offense). Moreover, in many jurisdictions, the prosecution could successfully object to the admissibility in evidence of the client’s declaration if the client is not offered in person for cross-examination.
It is theoretically possible for the attorney general to grant a noncitizen parole into the United States to attend court appearances during post-conviction litigation, but it appears rare. (Defense witnesses in capital cases have on occasion been admitted into the United States to testify, so there is no legal reason why the defendant should not also be allowed to enter temporarily for the purpose of attending a hearing during the post-conviction litigation, but it is somewhat more difficult to arrange.) See § 6.50, supra.
A client who is not in the country can usually offer, at best, declarations from afar to assist in the post-conviction work. Although it is possible that the state authorities will not realize that the client is subject to immigration arrest for illegal re-entry, it is not a safe bet. A couple of years ago, counsel filed a state habeas corpus petition in California state court for an undocumented client who suffered from lung cancer and was undergoing extensive treatment here. After a couple of court hearings, the prosecutor told counsel that at the next appearance, she would call INS agents as witnesses concerning the immigration consequences the client suffered. After intensive consultation, the client decided to withdraw the habeas petition rather than run the risk of being arrested by those agents when he next appeared in court.
 INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).
 See INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).