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State Prosecutor must ask for a Deportation Control Order in criminal case with deportation holds

When a defendant with pending charges is released, the detainer is triggered and ICE may immediately take him into ICE custody. When the defendant is unable to appear for the next court hearing the court may impose a bench warrant. Both the prosecutor and the court can request that ICE produce the defendant for her/his court hearing and ICE has the power to do so. Moreover, ICE has the power to issue a departure-control order precluding the departure of any noncitizen from the United

States who is a party to a criminal proceeding. See 8 C.F.R. 215.3(g).

As articulated in §III.C., under controlling federal immigration regulations, ICE will not remove a defendant in a pending criminal proceeding without the consent of the (state or federal) prosecutor. See 8 C.F.R. 215.3.

Federal regulations provide a specific mechanism whereby ICE officials can (and arguably are required to) issue a “departure-control" order to prevent the removal (deportation) of any noncitizen defendant or noncitizen witness whose presence is essential to the criminal proceedings. See 8 C.F.R. 215.2.

Under 8 C.F.R. 215.344, a non-citizen is not permitted to “depart" the United States when doing so would be “prejudicial to the interests of the United States…" See 8 C.F.R. § 215.2(a).

A federal departure-control agent must issue an order preventing any individual’s departure if it would result in prejudice. Id. (“Any departure-control officer who knows or has reason to believe that the case of an alien in the United States comes within the provisions of § 215.3 shall temporarily prevent the departure of such alien…") (emphasis added). The temporary departure prohibition becomes final 15 days later. 8 C.F.R. §

215.2(b).

Departures that result in prejudice are specifically identified by regulation. 8 C.F.R. § 215.3. Explicitly included is the case of “any alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court of the United States…" 8 C.F.R. § 215.3(g). An even-broader provision is found at 8 C.F.R. § 215.3(h), which prohibits a noncitizen’s departure if he is “needed in connection with any investigation or proceedings being, or soon to be, conducted by any official executive, legislative or judicial agency in the United States or by any governmental committee, board, bureau, commission, or body in the United States, whether national, state or local."

However, both state and federal courts have recognized the availability of departure-control orders as a means of suspending deportation proceedings for a defendant or defense witness during the pendency of criminal proceedings. See, e.g., U.S. v. Lozano-Miranda, 2009 WL 113407 at *3 & n.13 (D. Kan. Jan. 15, 2009); U.S. v.

Garcia-Gallardo, 2009 WL 113412 at *2 & n.13 (D. Kan. Jan. 15, 2009); U.S. v. Perez, 2008 WL 4950992 at *2 (D. Kan. Nov. 18, 2008); U.S. v. Lopez-Aguilar, 1996 WL 370160 at *3 (E.D.N.Y. June 28, 1995); People v. Rodriguez, 2004 WL 2397261 at *9 (Cal. Ct. App. Oct. 26, 2004); People v. Jacinto, 75 Cal. Rptr. 3d 533, 538 (Cal. Ct. App. 2008), review granted, 81 Cal. Rptr. 3d 613 (2008).See, e.g., U.S. v. Lozano-Miranda, 2009 WL 113407 at *3 & n.13 (D. Kan. Jan. 15, 2009); U.S. v. Garcia-Gallardo, 2009 WL 113412 at *2 & n.13 (D. Kan. Jan. 15, 2009); U.S. v. Perez, 2008 WL 4950992

at *2 (D. Kan. Nov. 18, 2008); U.S. v. Lopez-Aguilar, 1996 WL 370160 at *3 (E.D.N.Y. June 28, 1995); People v. Rodriguez, 2004 WL 2397261 at *9 (Cal. Ct. App. Oct. 26, 2004); People v. Jacinto, 75 Cal. Rptr. 3d 533, 538 (Cal. Ct. App. 2008), review granted, 81 Cal. Rptr. 3d 613 (2008).

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