Almost all criminal charges pose some immigration consequences. Many people think that because they are a lawful, permanent resident and have been living in the United States for 10, 20, 30 or even 40 years, that they do not have to worry about the immigration consequences of criminal charges. Nothing could be further from the truth. Even a person who has been in the United States for 40 years, has a Social Security Number, full-time employment and a wife and children who are citizens can be subject to deportation for even a misdemeanor drug conviction.
At the Law Offices of Abraham Fernando Carpio, Esq., our highly skilled lead criminal defense attorney is going on 15 years of criminal defense experence. He is fluent in Spanish, given his personal Hispanic background, and he has extensive knowledge and experience in working to prevent the severe immigration consequences of criminal convictions.
Contact us at our law offices located in Northern Prince George’s County, Maryland, next to the Prince George’s Plaza Metro to schedule a free initial consultation. Please call 301.559.3100 during regular business hours or 301.613.6321 after hours or for emergencies.
Do not make the common mistake of going into court without a lawyer and be tricked or induced into entering a misdemeanor guilty plea for a small fine, or for no jail time and no probation, because the matter will not be closed if you are not a U.S. Citizen. If you do, contact us immediately to help you with postconviction remedies, or to defend you in Immigration Court. The immigration consequences can be harsher than those small fines and penalties, and can have a lasting impact on you and your family.
At the Carpio Firm, we have witnessed and can clearly inform you that no State or D.C. Superior Court judge handling your criminal case has authority to prevent the Department of Immigration and Customs Enforcement (ICE) from instituting and prosecuting a deportation removal proceedings. That is why it is crucial in all cases for the non-citizen, including the lawful permanent resident (Green Card), to consult with an experienced criminal defense lawyer prior to going into court on any criminal case.
Being a former Top Ranked Appellate Attorney in the U.S. Army JAG Corps, Mr. Carpio follows precedent closely. Of note here, a recent Supreme Court decision in Padilla vs. Kentucky has imposed new obligations on criminal defense attorneys to be extremely mindful and careful when handling all criminal cases involving non-citizens. Mr. Carpio practices both criminal defense and deportation defense and is qualified to advice you care for your cases along the way. Please bear in mind, that an order for removal or deportation is permanent and that it literally will serve to ban non-citizens from ever entering the United States for at least 10 years, even if they have not been to their home country in many years. This result will have a dramatic and very sad effect on the family and children of those non-citizens charged with crimes.
Please don’t despair if ICE issues a document commonly referred to as a “detainer” to a local jail or correctional facility when it is seeking custody of an individual in that facility for purposes of instituting removal proceedings. A detainer can be placed against anyone pretrial, without legal status, because the person generally does not have grounds for remaining in the U.S. regardless of the outcome of the criminal case. A detainer may also be placed if your family member is being charged with a deportable offense.
A client with legal immigration status is generally not subject to an immigration detainer before the conclusion of the criminal case, unless he or she has prior convictions rendering him or her removable or has been previously ordered removed, or has a felony charge that makes him/her deportable. Detainers are also lodged against noncitizens serving prison sentences pursuant to conviction.
Generally, an immigration detainer is a request to a local law enforcement agency to detain a named individual for up to 48 hours after that person would otherwise be released (excluding Saturdays, Sundays, and holidays), in order to provide ICE an opportunity to assume custody of that individual. The 48-hour period begins to run when the named individual is no longer subject to detention by the local law enforcement agency—that is, after the individual has posted bond or completed a jail or prison sentence.
Detainers are served like a warrant on local sheriff”s, state agencies, and sometimes even federal agencies on Form I-247 (Notice Of Action).The detainer may include important information, such as whether a client was previously ordered removed.
No Maryland cases have been reported on this subject matter, but at least one State court has held that a State agency must release an immigration detainee after 48 hours have lapsed. In Ochoa v. Bass, 2008 OK CR 11, the Oklahoma Court of Criminal Appeals stated that a Sheriff “must” release a foreign national held on an I-247 Immigration Detainer after the expiration of 48 hours.
If a detainer is placed pretrial against an individual and he or she posts bail, ICE must assume custody of him or her within 48 hours. If ICE fails to assume custody of the individual during the 48-hour period, the individual should be immediately released.
The local jail or correctional facility no longer has the authority to detain an individual once the detainer has expired. Any additional detention is unlawful and in violation of state pretrial release laws, and could subject the facility to suit for false imprisonment.
Similarly, the state lacks authority to hold someone who has served his or her maximum sentence for the offense. In practice, however, jails and correctional facilities may be reluctant to release the detained individual.
Bond Considerations for a Client with an Immigration Detainer
An immigration detainer is often lodged against a client before he or she has an opportunity to post bond. In those circumstances, if the client posts bond, ICE has the authority to assume immediate custody of him or her. If ICE exercises its authority and takes your friend or loved one into custody, he or she may be sent to an out-of-state immigration detention facility for the institution of removal proceedings.