Criminal Defense of Immigrants


§ 15.9 A. Summary for Criminal Defense Attorneys

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Criminal defense counsel will find it useful (especially when engaging in post-conviction work) to have a basic understanding of (1) when and how their client may come in contact with the immigration authorities, and (2) the process of removal.


                On the first point, if counsel can understand how their client may come in contact with the immigration authorities, counsel can understand how their client can avoid such contact (and likely immigration detention), at least until the client can obtain an immigration-safe disposition in the criminal case.  For example, noncitizens are often found by immigration authorities while in criminal custody, and an immigration hold is placed, meaning that they will automatically move directly into immigration detention upon release, instead of being released from criminal custody into freedom.


In general, the immigration authorities do not search out removable noncitizens in the community.[141]  Rather, they wait for these noncitizens to come to them.  The longer this can be avoided, the better.


                On the second point, counsel who has basic knowledge of the removal process can estimate how much time they have in order to assist their client in obtaining an immigration-safe alternative disposition.  The earlier in the removal process noncitizens can start a post-conviction attack, the better chance they have of succeeding in criminal court before they are physically removed from the United States, after which it is extremely difficult (if not impossible) for them to return.


                Once a noncitizen is served with a Notice to Appear before an Immigration Judge, the noncitizen is running against a clock.  Proceedings before an immigration judge may run anywhere from a week to (rarely) a few years, depending upon the circumstances of the case, the court’s caseload, and the actions of immigration counsel.  Cases in which the noncitizen is detained by the DHS are processed more quickly than those in which the noncitizen has been released on immigration bond.


                If a noncitizen respondent reserves appeal, after receiving a removal order, s/he has 30 days within which to file a notice of appeal to the Board of Immigration Appeals.  Once at the BIA, the case can again take between six months and several years.  If the BIA appeal comes to an end, further appeal can be made to the federal court of appeals, and ultimately to the United States Supreme Court.


                With Immigration Counsel presenting non-frivolous arguments why a noncitizen is not removable and/or is eligible for relief, a common timeline may look like this:


                Immigration Court: 5 months.

                Board of Immigration Appeals: 7 months.

                U.S. Court of Appeals: 1 year.

                Total: 2 years.


The earlier in this process a post-conviction attack is successful, the easier it is for the noncitizen to submit proof of that success and receive a judicial response.  It is also better for a noncitizen subject to mandatory immigration detention to avoid spending the full two years in custody before succeeding in post-conviction work.


[141] This is beginning to change, starting with sex offenders, but the practice may be extended to drug traffickers and other high priority cases if greater resources become available.



Ninth Circuit

Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (IJ decision becomes administratively final after the tolling of a voluntary departure period).