Consequences for an Illegal Immigrant Arrested for a Criminal Offense

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UPDATED: Jul 14, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 14, 2021Fact Checked

There can be severe consequences for an illegal immigrant who has been arrested for a criminal offense. If you or a loved one is in this situation, you should seek the counsel of an experienced criminal defense attorney and an experienced immigration attorney. You may be able to find a lawyer who knows criminal and immigration law well, in which cae it will help if you can get the same attorney to represent the illegal immigrant in both cases. 

The consequences for an illegal immigrant who has been arrested for a criminal offense may be incarceration and fines in the criminal case and deportation in the immigration case. Once an illegal immigrant is arrested, the jail that booked them or law enforcement agency that effected the arrest will report the booking or arrest to Immigration and Customs Enforcement (ICE). ICE is a law enforcement agency under the U.S. Department of Homeland Security (DHS).  

Getting Criminal Charges Dropped & Transferring to Immigration Court

As federal officers, ICE officers possess powers that are greater than that of state officers. ICE can ask the District Attorney (D.A.) to drop charges; this allows ICE to bring the illegal immigrant to immigration court more quickly.  

This is a typical series of events when an illegal immigrant is arrested: The illegal immigrant will be held in the jail of the city, county, or parish in which they were charged; the jail will report the illegal immigrant to ICE. ICE will indicate to the jail and the D.A. that they want the D.A. to drop the charges. The D.A. usually drops their charges. ICE officers come to the jail. They take the illegal immigrant into federal custody. They place him or her in a federal detention center. And ICE then transports the illegal immigrant to immigration court.  

What Happens When Criminal Charges Are Not Dropped?

If the D.A. does not drop their charges right away, the illegal immigrant will remain in the local jail. Their criminal case can be resolved several ways. The illegal immigrant may take a plea offer that causes them to be adjudicated guilty, or after a judge or jury trial, be found guilty. They may also take a plea offer in which adjudication is withheld. This means that there is neither a finding that they are guilty nor a finding that they are not guilty. If the sentence for the illegal immigrant includes jail or prison, they will serve out their term of incarceration in the state or federal jurisdiction in which they were tried. The length of their sentence depends on their offense.  

The other options are for the D.A. to drop the case later during the course of prosecution, or the illegal immigrant to have a trial and be found not guilty. No matter what the result, if the illegal immigrant is incarcerated when their criminal case is resolved, they may be subject to a “hold” by ICE. This means that the local jail will notify ICE to take the illegal immigrant into federal custody. If ICE does not want to deport the illegal immigrant, it will not send its officers to take the illegal immigrant into federal custody. The illegal immigrant may be held at a federal detention center. If ICE does not take the illegal immigrant into federal custody, this does not mean that the deportation case has been dropped. The illegal immigrant will still be required to come to immigration court. 

An Immigration Case vs a Criminal Case

The immigration case typically has more dire consequences than the criminal case. An illegal immigrant who is deported to their home country may be barred from re-entering the United States by law for many years. The length of their bar depends on the facts of their immigration case. Depending on the nature of their offense, they may also be prosecuted by their home country for the same offense in the United States, as the U.S. Constitution’s protection against double jeopardy does not apply if the illegal immigrant is no longer in the United States. 

In addition, illegal immigrants have less protections in an immigration case than in a criminal case. Immigration is a special area of federal civil law. According to the U.S. Constitution, an individual has no right to an attorney in a civil case.  

Consulting or Hiring an Immigration Attorney

One of the main reasons that an illegal immigrant may need an attorney is to avoid the appearance of guilt in the criminal case in immigration court. If an individual chooses to testify on the record in their criminal case, anything they say can be used against them in immigration court later. The reverse is also true. Furthermore, if the illegal immigrant is deported, transcripts of their criminal and immigration cases in the U.S. will be created. The prosecuting agency of the illegal immigrant’s home country can use the transcripts to prosecute the individual abroad.  

A criminal case is a desperate situation by itself. It becomes more complicated if it connects to an immigration case. Before you make a serious decision in either type of case, speak to an experienced attorney or attorneys versed in both areas of law. They will help you understand how to navigate your particular situation.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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