quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 For a criminal defendant awaiting trial, usually a detainer will not be issued against a defendant unless the defendant is either undocumented or out of status, in which case the defendant is already subject to removal, or if the defendant has lawful status but has prior convictions rendering the defendant deportable. Defendants who have lawful permanent resident status or other lawful status with no prior convictions which make them removable, should not have a detainer issued against them. 2. Where there is an immigration hold/detainer If a detainer has been issued, counsel should obtain a copy of the detainer from the criminal justice agency to which it has been issued. Defense counsel should check which boxes on the detainer form have been checked. A detainer could be issued for several alternative reasons: Temporary Detention; a warrant of arrest by INS was issued; deportation or removal has previously been ordered; a Notice To Appear or other charging document initiating removal proceedings has been served; or, INS is only investigating the alien. If INS issues a detainer and does not assume custody of the alien, either by taking the alien into actual INS custody or by issuing a warrant of arrest, within 48 hours after the alien would otherwise be released by a criminal justice agency, excluding Saturday, Sundays and Federal holidays, then the criminal defense attorney should demand the alien’s immediate release from custody from the criminal justice agency holding the prisoner. 93 If the defendant is not immediately released the criminal justice agency is subject to a suit for damages and injunctive relief can be obtained to prevent further violations. 94 A writ of habeas corpus can also be filed to obtain the defendant’s immediate release from custody. 95 A copy of such a writ is included in Defending Immigrants in the Ninth Circuit, Appendix 12-A. Counsel should make sure the defendant has not signed a voluntary departure under safeguards. If the defendant has signed this form (Form I-274) then ICE has custody of the person. However, the noncitizen or her attorney retains the right to revoke the request for voluntary departure. To revoke a request for voluntary departure the alien’s attorney must present a G-28 Form to the INS or the border patrol showing that the attorney is authorized to represent the alien. Before doing this, however, analyze the situation and check with immigration counsel, if possible. If the only other possibility for the defendant is removal, it may be better to accept the voluntary departure. Where there is an immigration hold, it may well be in the client’s best interests not to be released from criminal incarceration. Immigration detention is worse than criminal 93 Many local criminal justice agencies incorrectly assume that a detainer requesting Temporary Detention authorizes detention for 5 days after a prisoner would otherwise be released confusing an INS request for Temporary Detention with the statutory period allowed to hold prisoners with out-of-county warrants. 94 See e.g., Gates v. Superior Court, supra, 193 Cal.App.3d at p. 219-221 (interpreting prior “24 hour rule” of 8 CFR 287.3); Cervantez v. Whitfield, supra, 776 F.2d at p. 557-559 (stipulation concerning prior “24 hour rule.) 95 See Section 12.4, infra. Immigrant Legal Resource Center N-57
California Quick Reference Chart and Notes February 2010 incarceration. Immigration bond is unavailable for most criminal grounds for deportation. Even if bond is possible, immigration bonds require real property collateral and 10% cash deposit or full cash deposit and are set at $1,500 or more. While detained by immigration authorities, the detainee can be moved hundreds of miles away, to another state and outside the jurisdiction of the Ninth Circuit. Conditions in immigration detention generally are even worse than in jails. If a hold has been issued, defense counsel should consult with an immigration attorney concerning the alien’s chances of being released on an immigration bond and possible relief from removal. A criminal defendant with a detainer must first post bond or be granted O.R. before the defendant will be picked up by INS. If it is possible to obtain release pending removal proceedings on an immigration bond, the criminal attorney can assist the defendant in seeking release on bail or O.R. on the criminal charge. If bond on the immigration case is not available, the criminal defense attorney will probably not want the alien to be released on own recognizance or bond on the criminal charges because then the alien will be taken into immigration custody. Summary of Strategy: • Attempt to obtain your client’s immediate release on O.R. or bail before any hold or detainer is place; • If your client signed a voluntary departure request you can revoke it. You should consult an immigration attorney before doing this; • If your client is held more than 48 hours, excluding Saturdays, Sundays and Federal Holidays, beyond the time the defendant should be released on the criminal charge and the client has not signed a voluntary departure request you should seek your client’s immediate release from custody by threatening a false imprisonment or civil rights violation suit against the custodial agency, city or country and/or file a writ of habeas corpus; • If a detainer is filed against your client and your client is eligible for immigration bond, attempt to obtain your client’s release on O.R., or bond on the criminal charge and then on the immigration matter after INS picks up your client. You should plan and coordinate this with an immigration attorney. However, most criminal removal grounds make the alien ineligible for release on bond from immigration detention. • If your client will be deportable by reason of the current charge, consider a jury or court trial or submitting the matter on a preliminary examination transcript or police report or pleading guilty after a suppression motion (1538.5 PC), and then filing an appeal. See Note 2: Definition of Conviction. If the matter is on direct appeal when the defendant finishes his jail or prison sentence, ICE cannot use the conviction as a basis for deportation. N-58 Immigrant Legal Resource Center
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