(A)

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.[51]  Rather, they wait for these noncitizens to come to them. The noncitizen may go into the DHS offices for an interview or to obtain a renewed green card, for example, or try to pass through an immigration checkpoint, airport, or border.

[51] This is beginning to change, starting with sex offenders, but the government may move on to drug traffickers and other high priority cases if greater resources become available.

Other

CRIMINAL DEFENSE OF IMMIGRANTS -- PROSECUTION CONTROL OVER DEPORTATION REMOVAL -- PROSECUTION CONTROL OVER DEPORTATION
The prosecutors control whether a criminal defendant gets physically removed from the United States. After receiving instructions from a federal or state prosecutor not to remove a defendant, ICE should issue a Departure Control Order. If a judge is worried that the defendant would not be available for trial because ICE would remove the defendant from the United States, defense counsel can remind the court that the prosecutor has the power under this regulation to keep the defendant in the United States.

POST CON RELIEF " NONCITIZENS FACING CHARGES MAY NOT BE DEPORTED
8 C.F.R. 215.3(g)(defines an alien facing criminal charges as an alien whose departure "would be prejudicial to the interests of the United States," and, therefore, one whose removal would be illegal in violation of INA 215(a)). ICE general counsel, however, has announced ICE is refusing to be bound by this regulation. ICEs interpretation is at odds with the plain language of 8 CFR 215.3(g) and the operative language of 215.2. There is no mention of wartime or national emergency in the regulations. And as Ingrid Eagly of UCLA points out, the INS deleted the prior regulations, which did mention wartime and national emergency exceptions, and specifically removed those limitations on the scope of the departure control order. 45 FED. REG. 65515 (Oct. 3, 1980). See United States v. Lozano-Miranda, No. 09-CR-20005, 2009 WL 113407 at *3 & n.13 (D. Kan. Jan. 15, 2009) (rejecting prosecutions argument that defendant posed flight risk because of ICE detainer and noting that 8 C.F.R. 215.3 prevents departure unless prosecution consents); United States v. Garcia-Gallardo, No. 09-CF-20005, 2009 WL 113412 at *2 & n.13 (D. Kan. Jan. 15, 2009) (same); United States v. Perez, No. 08-CR-20114, 2008 WL 4950992 at *2 (D. Kan. Nov. 18, 2008) (same). Thanks to Dan Kesselbrenner.