(B)

Counsel who has basic knowledge of the removal process can estimate how much time they have to assist their clients 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 legally to the United States.

 

            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 whether the client is in custody, 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 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, a petition for review can be filed in the federal court of appeals, and ultimately the case can be taken 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 deadline for filing a motion to reopen in the BIA is three months after the BIA decision. After this point, the DHS must be persuaded to file a joint motion or the BIA to reopen sua sponte. 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 roughly two years in custody before succeeding in the post-conviction work.

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.