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If you are not a United States citizen and you are charged with a federal crime, are you going to be automatically detained? Or, in other words, does your status of being a non-citizen make you a flight risk?
A typical scenario is something like this: a person is arrested and charged with a federal offense. It turns out that the person charged is not a citizen of the United States. The Judge makes a decision that the person is a danger to flee. Under the law governing this type of person for detention, the person can be held for 10 days while the government notifies the proper authorities to see if they will take the person into custody, pursuant to 18 U.S.C. section 3142(d). Often this means Immigration and Customs. But, if after the 10 days has passed and nothing happens, then the person should be treated in the same manner as any other person in federal custody who is involved in a detention or bail hearing.
A problem can arise if a person who is a non-citizen has what is called an immigration "detainer." This means that the immigration authorities have filed a notice, the detainer, that they may want to hold the person for a immigration violation. Immigration may or may not decide to pick the person up if a criminal court grants release. But, as immigration is its own complicated set of law, and is in essence a specialty, the effect of an immigration detainer may or may not be well understood by both the government and the Court.
A recent case involving an non-citizen created the problems outlined above. In this instance, the defense decided to call an immigration attorney to testify as to what the immigration authorities may do when they have issues a detainer. The benefit of this case is that there is now a transcript for Federal Criminal Defense Attorneys to utilize if they face these issues.
Federal Criminal Defense is complicated. It often involves complex legal issues and mixes different areas of law. It is important that you choose a Federal Criminal Defense Attorney who enjoys the challenges of federal criminal practice and who will stay up-to-date on issues before the Court.