Some foreigners do not qualify for ICE bonds, because they are viewed as flight risks, dangers to the community, and may not have relief available in immigration court due to their situations. It is unclear whether this person qualifies without quite a bit more information and investigation.
When there are civil violations of Federal immigration laws, then the DHS can take control over a foreign national who is unlawfully present in the U.S. In some situations, where the foreigner has committed the act of unlawful re-entry, the Federal Government can charge the foreigner with this criminal offense. However, at times, DHS simply reinstates an earlier deportation order and summarily remove the foreigner. The Federal Government can take control over a foreigner who is unlawfully present in the U.S., even if they are charged with a state crime.
A person may arguably claim the state has legal obligations, or the foreigner has rights, but these claims must be enforced or exercised by either the County prosecutor or the foreigner's criminal defense attorney.
This means that if the person is charged with a crime, but the county prosecutor dismisses the case, then there is no pending criminal case. However, if the criminal defense attorney fails to take action to notify the court and prosecutor that it was not the fault of the foreigner for not being in court, then the criminal court may issue what is called a bond forfeiture warrant for the foreigner's arrest. This is true even if they are detained by the D.H.S.
The obligations or rights of a foreigner can be given up depending upon the situation and response. If a criminal attorney is unable to appeal a decision or take appropriate action due to ignorance, or the defendant's unwillingness to support the legal effort required to represent the foreigner, then legal rights are given up or 'waived.'
In these situations, but not all, it may be due to the limitations imposed upon the criminal justice system, when balanced with Federal civil/criminal immigration laws, but to prove that an action is unconstitutional can become extremely complicated, costly, questionable and require a well documented case.
In general, if a foreigner has no legal right to remain in the U.S., then the remain in the U.S. at their own risk and peril under what is known in the U.S. Constitution as the Alieneage Clause. Our U.S. Congress has considerable control over immigration laws based upon the Constitution. Therefore, many acts that may seem Unconstitutional where applied to Americans may be legal when applied to foreigners who violate our immigration laws.
I strongly recommend an appointment with an experienced immigration attorney. Perhaps, something can be done to dismiss the criminal case once the criminal defense attorney or public defender understands what is going on. Perhaps, an immigration bond is possible.
The above is general information and does not create an attorney client relationship.
You need to discuss your case with an attorney. For a free consultation please give me a call.
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716 830 7960
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