What if a person is serving time in the Arizona Department of Corrections (prison), and they simultaneously have a "probation tail" and an "ICE hold" or "Immigration hold"? First, let me define some terms. A "probation tail" is when a person accepts a plea agreement in which one or more counts require a prison sentence and one or more other counts require a term of probation after the prison sentence is completed. The person serves his/her prison sentence, then is released to probation.
An "ICE hold" is when the United States Immigration and Customs Enforcement places a "hold" on a person who is detained on state and/or local charges and ICE suspects that the person is either (1) in the United States with no permission, or (2) in the United States with permission but is likely to lose that permission due to their criminal charges and/or convictions. When a person is released from prison or jail and they have the "ICE hold" on them, they are not released to the streets. Instead, they are released to the custody of the United States Immigration and Customs Enforcement and generally detained at one of the private prison facilities in Eloy or Florence, Arizona, while the merits of their immigration case are evaluated. A very common situation arises when a person accepts a plea agreement that requires a jail or prison sentence and a probation sentence "probation tail" upon release, and that person simultaneously has an "ICE hold" on them. In this situation, the "ICE hold" wins out, and the person will be sent directly to one of the ICE detention facilities upon their release.
It is common for people to incorrectly believe that their â€œprobation tailâ€? is ticking away while they are in ICE custody and/or outside of the United States. For example, an individual might be released from prison to ICE, then quickly deported to his home country. This individual might have been sentenced to a 3 year "probation tail," therefore he believes that he need only stay in his home country for 3 years before returning to the United States.
The probation is not ticking away while the person is outside of the United States! It is frozen in time. It only begins when (and if) the person returns to the United States. But the person must return to the United States legally, otherwise he/she will be in automatic violation of the probation the moment they step across the border into the United States without permission. In other words, the probation starts when they are back in the countryâ€"and unless the person obtained permission to re-enter, the probation starts with an automatic violation: the crime of illegal re-entry.
In situations such as this, it is extremely important that a person consult with a good immigration lawyer to weigh all of their options. I focus on criminal defense and personal injury cases and I do not practice immigration law, but I can say with a fair bit of certainty that most people who serve a prison sentence (especially if it lasts for more than one year), are usually deported and unlikely to be able to obtain permission to re-enter the United States legally. Just think of how hard it is for people with a perfectly clean record to obtain a Visa these days!
Another important thing to remember: when a person with a â€œprobation tailâ€? re-enters the United States without permission, and the probation begins with the crime of illegal re-entry, that person is now subject to the full prison sentence available under that probation. That, of course, is in addition to any federal time the person may be eligible to receive! In situations like this, a person could be facing literally decades of incarceration time and not even realize it!
So, bottom lineâ€"if you serve time in prison, then get deported and have a probation sentence that was supposed to begin upon your release, you need to be aware of:
1) the probation sentence is on hold while you are away from the U.S.A.;
2) the probation sentence will begin if and when you re-enter the U.S.A.;
3) if you donâ€™t have permission to re-enter, you are in automatic violation of the probation the moment it begins;
4) you need to contact an immigration lawyer to discuss your full range of options;
5) if you served a prison sentence in the U.S.A., it is not likely you will be able to re-enter with permission (but you need to talk to an immigration lawyer because every case is different).
Conclusion: the system is harsh. It is often harsher than people realize until it is too late. It is important to educate yourself and consult with an experienced lawyer and never assume anything.
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