(A)

In General.  Immigration detention is analogous to criminal detention.[52]  The person detained may post cash or bond[53] in the amount set by the agency or the court and obtain release just as with a criminal bond, unless the noncitizen is subject to mandatory detention.  A noncitizen may be able to work with criminal defense and immigration counsel to avoid a conviction that would trigger mandatory detention.  Criminal lawyers should attempt to obtain criminal dispositions that do not trigger mandatory detention, while immigration counsel can argue in immigration court that a given disposition does not do so.

 

            Whether a noncitizen will be subject to detention and whether s/he may be released on bond will depend on the noncitizen’s immigration status and the ground(s) of removal.[54]

 

Once a client has been released from criminal custody, into immigration custody, s/he may be transferred to a close or distant immigration detention facility.  The DHS decides where a noncitizen will be detained.  In some cases a noncitizen arrested by the DHS in California, for example, may be transferred to a detention center in Louisiana.[4]  This transfer means that the noncitizen will be subject to the harsher interpretation of the immigration laws that prevails in the Fifth Circuit, rather than the generally more lenient rules of the Ninth Circuit.[5]  It is extremely difficult to convince a court to intervene in this to transfer a client.

 

The DHS may also keep the client in local criminal facilities under contract with the DHS.  Counsel may wish to use ongoing criminal or post-conviction proceedings to encourage the DHS to do so.  See Criminal Defense of Immigrants § 6.48.

[55] ICE’s Detention Operations Manual may be viewed online at http://www.ice.gov/partners/dro/opsmanual/index.htm

[56] Minimum bond is set at $1,500.  INA § 236(a)(2)(A), 8 U.S.C. § 1226(a)(2)(A).

[52] INA § § 235, 236, 236A, 8 U.S.C. § § 1225, 1226, 1226A.

[53] In Committee of Central American Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986), the court refused to restrain transfer of unrepresented noncitizens to remote areas where their access to counsel may be limited.  The decision might be different if such transfer affected due process rights by “impairing an established-ongoing attorney-client relationship.”  Where a person is transferred to a remote location, the immigration attorney can petition for a change of venue to a closer urban center, especially if the client makes bond, in which case venue is routinely changed. 8 C.F.R. § 1003.20.

[54] See Criminal Defense of Immigrants § 15.7.

Other

CAL POST CON " DEFENDANTS SUBJECT TO DEPORTATION " LIMITATION ON STATE DETENTION FOR IMMIGRATION PURPOSES " PROPOSED CALIFORNIA LEGISLATION
California Legislature may consider proposed bill to block state jails and prisons from enforcing immigration detainers. http://www.latimes.com/news/local/la-me-immigration-law-20120128,0,7286049.story