LEGAL GUIDE
Written by attorney Paul E Knost | Sep 18, 2011

Probation tails and Immigration holds, Part 2

In Part 1 of this article, I discussed a situation where a person is in the Arizona Department of Corrections (Arizona state prison) and that person also has an Immigration hold on them.

Here, I am going to talk about an earlier stage in the process: when a person is detained in the Maricopa County Jail awaiting trial and they have an Immigration hold on them. I am going to explain why the Maricopa County Jail is filled with mostly people who are citizens of countries other than the United States. It is not that those people are committing most of the crime. That is simply not the case. It is because of the non-bondable status of people who have an ICE hold on them.

Keep in mind that, when a person is in the Maricopa County Jail awaiting trial, they have not been sentenced yet. This means that the person has not been found guilty of anything. The only exception to this is when a person has been found guilty, is facing a prison sentence, and is in the Maricopa County Jail awaiting sentencing.

In general, there are two ways for a person to be found guilty: (1) by accepting a plea agreement in exchange for a reduced sentence; or (2) by a jury after a trial has been conducted.

When a person is in the Maricopa County Jail, and has not been adjudicated guilty of anything yet, it is standard procedure for the United States Immigration and Customs Enforcement to place an ICE hold on the individual under the following circumstances:

(1) The person, who is not a citizen of the United States, is facing state criminal charges and is in the United States without permission, or

(2) The person, who is not a citizen of the United States, is facing state criminal charges, and is in the United States with permission, but the pending criminal charges are likely to make the person deportable if found guilty.

Situation 1

In the first situation, where the person is in the United States without permission and is being accused of a criminal offense, ICE places a hold on the person. This is true even if the court has set a bond. When a person has an ICE hold on them, they cannot bond out. In fact, even if they post the bond set by the court, they will not be released! The ICE hold will keep that person in the jail until the state charges are resolved. It is not advisable for a person in this situation to post bond, because they will not be entitled to any credit for the time they have served, beginning on the day that the bond was posted.

Once the ICE hold is in place (usually from the moment the person is booked into jail), then ICE will take the person into their custody upon final disposition of the state charges. It does not matter what the final outcome of the state charges are. The charges could be dropped; the person could be found not guilty; the person could be sentenced to probation, or prison. Whatever occurs, the person will be remanded to the custody of ICE once the state charges are fully dealt with, including a state prison sentence, if any.

When the person gets to the detention center for ICE, the person needs to consult an experienced immigration lawyer. Often a person will be offered a "voluntary departure" in which they can agree to be removed from the United States. But that is only a good deal for a person who has no chance of obtaining a visa anyway, or who simply no longer wishes to remain in the United States. The scenarios that arise here are numerous and it is important that a person consult with his/her immigration lawyer at that point before deciding to sign any agreements with the government.

Situation 2

This comes up where a person does indeed have permission to be in the United States (usually in the form of a visa), but the state charges that the person is facing will, if convicted, make the person deportable. I see this in situations where the person has been a lawful permanent resident for a long time, but they are now being charged with something like Aggravated Assault (with a weapon), or a domestic violence offense, or a crime involving fraud such as forgery or fraudulent schemes and artifices, or any number of state crimes that are classified as "aggravated felonies" and/or "crimes of moral turpitude" by ICE. (Consult your immigration lawyer for more details on this.)

A person in this situation will not be able to bond out of the Maricopa County Jail. They have to wait in the jail until their state charges are resolved. It is important for a person in this situation to have a criminal defense attorney and an immigration lawyer who are consulting with one another as the case progresses. The immigration lawyer can help guide the criminal defense lawyer through the plea negotiation process and warn of potential pitfalls.

Conclusion

For the most part, only citizens of the United States are allowed to actually bond out of jail here in Maricopa County, Arizona. While it is true that some state crimes are non-bondable under state law, the fact remains that ICE holds have created a situation in which the county jail is the de facto antechamber to the immigration courts and their privately run prison facilities in Eloy and Florence, Arizona. For better or for worse, that is the situation.

For more on this topic, or to discuss your particular case, please feel free to give me a call at 623-936-1901 for a free confidential consultation.

God bless all of you!

© 2011, Law Office of Paul E. Knost, PLLC, All Rights Reserved

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IF YOU HAVE A LEGAL ISSUE AND NEED LEGAL ADVICE, CALL 623-936-1901 FOR A CONFIDENTIAL LEGAL CONSULTATION WITH AN ATTORNEY.

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