Diane Oraif Law
205-366-9283
Tuscaloosa, Jefferson
Bessemer Cutoff,
Bibb, Greene, Pickens
Chilton, Fayette
Montgomery and
Surrounding Counties
NEW: You may contact us via text messaging!
205-366-9283
205-366-9283
Tuscaloosa, Jefferson
Bessemer Cutoff,
Bibb, Greene, Pickens
Chilton, Fayette
Montgomery and
Surrounding Counties
NEW: You may contact us via text messaging!
205-366-9283
IMMIGRATION CONSEQUENCES:
Aliens in Criminal Court
Criminal cases for NON-CITIZENS is very different from criminal cases for citizens.
PADILLA V KENTUCKY(link) outlines several remedies in which to seek post conviction relief for INEFFECTIVE ASSISTANCE OF COUNSEL. Here are some quick tips.
- ANALYZE THE IMMIGRATION CONSEQUENCES USING THE ENTIRE RECORD. Based on this information, counsel should investigate the specific immigration consequences that the plea would impose on the defendant.
- DON'T WAIT UNTIL AFTER DISPOSITION OF CRIMINAL CASE ON DHS ISSUES. This analysis and advice also must take place before a defendant decides to go to trial, enters a diversion or drug treatment program, handles a charge of violating the terms of probation or of a protection order, admits an addiction, or handles a sentencing or delinquency hearing – all of which can carry adverse immigration consequences.
- TRY TO PREVENT DHS FROM GETTING CUSTODY. If an incarcerated defendant has an immigration hold or detainer, before obtaining release from criminal custody counsel should inform her/his client that DHS might detain him or her. Because persons often are transferred multiple times and long distances in immigration custody, criminal custody may be preferable.
- CONSULT AN IMMIGRATION ATTORNEY. Get expert consultation on individual cases BEFORE making a plea offer or going to diversion programs.
REMOVALS | DEPORTATION | NOTICE TO APPEAR | NTA
The following applies if Client is certain to be removable upon conviction:
Voluntary departure -- client's best choice. Eligibility MAY exist as long as not an aggravated felon or terrorist. Be sure to advise client that even voluntary departure could possibly result in being inadmissable, but that formal removal (deportation) will certainly do so, in absence of DHS permission to return earlier. One never knows when client could win the "green card lottery', marry a U.S. Citizen, or have some other immigrant petition or asylum application granted.
If Client just gets bonded out of jail and departs unilaterally, there will be an in absentia hearing formally barring him for several years from returning to the USA.
If returning while under the bar to reentry, Client will be subject to permanent inadmissibility and to substantial criminal and civil penalties. (Up to twenty years imprisonment).
Client can take preemptive action by working with DHS directly to be removed while avoiding formal removal. Client must first seek release (on bond or other) from the criminal court before forcing DHS to exercise its detainer and taking custody of the individual.
Ask ICE officer not to issue an NTA (letter that triggers formal removal proceedings), so that client can avoid becoming the subject of a formal removal hearing. This is called Prosecutorial Restraint.
You can find phone numbers for local (Hoover or Etowah County) ICE offices on this website page on the very bottom, last link (look under New Orleans heading of the Pdf). These are not listed on the ICE website, as they are smaller, local field offices.
UNILATERAL DEPARTURE IS NOT RECOMMENDED, could get a bar to reentry. Try for a more formal VOLUNTARY REMOVAL, so that after you physically leave, submitting a Form G-146, signed by a US consular officer abroad in your home country prevents the IJ from holding an in absentia removal hearing.
Any illegal, undocumented person here longer than a few weeks gets the option of a hearing. Aliens facing removal are entitled to the opportunity to be heard. Even if passing through the gates to the USA " even illegally, they can be expelled only after proceedings conforming to tradition standards of fairness encompassed in due process of law." Shaughnessy v. US ex rel. Mezei, 345 U.S. 206, 212, 73 S. Ct. 625, 97L. Ed. 956, 963 (1953).
If you sign a bond what is your responsibility?
When you bail someone out of jail and sign a bail bond contract you are "the indemnitor". You assume a responsibility to the court and to the bail bond agent, taking full responsibility for the defendant to show up in court. If the “failure-to-appear” was a simple mistake, then the bail bond company can usually make cost-free arrangements for the defendant to return to court.
You can usually explain to the court if someone gets sick, gets stuck in traffic or has car problems. If the defendant can’t be located or refuses to go to court, then the person who was bailed out could be considered a fugitive, and the bail bond company will need to locate and bring the defendant into custody with the help of the indemnitor.
A bail bond is formally known as a "Surety Bond". Usually, a friend, relative, attorney or defendant will contact a bail bond company by phone.
After the bail bond paperwork is finalized, a licensed agent will “post” the bail bond at the appropriate detention facility or jail which will result in the release of the defendant. From start to finish, a competent bail bond company will complete the entire bail bond process in 1 to 2 hours.
You can usually explain to the court if someone gets sick, gets stuck in traffic or has car problems. If the defendant can’t be located or refuses to go to court, then the person who was bailed out could be considered a fugitive, and the bail bond company will need to locate and bring the defendant into custody with the help of the indemnitor.
A bail bond is formally known as a "Surety Bond". Usually, a friend, relative, attorney or defendant will contact a bail bond company by phone.
After the bail bond paperwork is finalized, a licensed agent will “post” the bail bond at the appropriate detention facility or jail which will result in the release of the defendant. From start to finish, a competent bail bond company will complete the entire bail bond process in 1 to 2 hours.