Interviewer: When should a criminal defense attorney try to get their non-citizen client out of jail or when should they leave them in jail, if there is such a time?
Release From a County Jail and Release from an Immigration Detention Center
Ron: Yes, this is a common question. It can concern both the release from custody from the county and then immigration detention. The first issue is whether the client should be released from criminal custody. Normally, the defense attorney always seeks the client’s release from jail, but in the case when their client’s not a U.S. citizen, they may have what’s known as an “immigration hold” lodged against him or her.
Immigration Detention Should Be Absolutely Avoided
In that case, immediate release from criminal custody may not be in the best interest for the client. Immigration detention can have a devastating effect on a client’s life and the life of his or her innocent family.
Sometimes immigration detention is mandatory. The immigration court is not allowed to even release the client on bond, so that would result in a permanent detention until deportation occurs. So criminal counsel must always attempt to avoid a criminal disposition that triggers a mandatory detention and I can give you a quick example.
My New Jersey client pleads guilty to a disorderly persons offense while under the influence of cocaine. This was because this particular client has a little bit of white powder under his right nostril.
He plead guilty to that disorderly persons offense. He was subject to mandatory detention and we had to go back into court. We had to get that conviction vacated in order to get him out of jail.
Are Prosecutors Difficult to Work With in These Cases?
Interviewer: What happens if the prosecutor you’re against appears to dislike immigrants, personally, and won’t give you safe haven? What do you do?
Ron: I know that most criminal defense attorneys plead out, I’m guessing, 90 to 95% of their cases, but in a situation like this with a non-U.S. citizen, and the prosecution is not going agree to any time of immigration harmless disposition, that is a safe haven, then the defense attorney’s going to probably have to have a trial. I know that a very small percentage goes to trial, but that may be the only solution.
Interviewer: So going to trial, avoiding conviction, avoiding all these problems is important, but is there anything else that could be done to minimize the immigration consequences to your client?
Ron: Certainly you want to try to avoid a conviction. We spoke about the sentencing. We want to try to get non-conviction sentences. That would be, in New Jersey, a conditional discharge or a PTI.
If the Case Involves a Juvenile, Have the Case Heard in Juvenile Court
How about a juvenile disposition? If there’s any way to get a disposition in juvenile court, that doesn’t constitute a conviction for immigration purposes if one is able to get that type of a sentence. Also, post-conviction relief and we’ll talk about that at length later on. That’s a topic unto itself.
Interviewer: You mentioned about getting a disposition in juvenile court, but how about juvenile foreign nationals that commit crimes? How is their situation different or is it different?
Ron: It would be the same situation with juvenile foreign nationals. When I say a “juvenile disposition,” I’m talking about a non-citizen that’s been charged with a juvenile offense. Immigration authorities don’t consider that to be a conviction. So, more likely than not, it’s not going to trigger any type of immigration consequence.