CRIMINAL ENFORCEMENT OF IMMIGRATION LAWS
United States immigration statutes and regulations are generally regulatory/administrative law in nature.
This means that criminal prosecution and criminal penalties are the exception. However, there are
circumstances which will trigger a criminal prosecution by the United States Government. Only the
federal government may bring criminal charges for a serious violation of immigration law and the several
states are generally without proper authority to criminally prosecute alleged violation of federal
What To Do If A Person is Charged with a Federal Immigration Crime
A criminal prosecution usually begins with a grand jury indictment (there are some exceptions). With an
indictment in hand, federal law enforcement authorities including special agents of Immigration and
Customs Enforcement (ICE) will seek to arrest the person under indictment. Local law enforcement
agencies may be asked to assist in making the arrest.
All persons however arrested fall under the protection of the United States Constitution. At the time of
arrest, the defendant must be given the Miranda warning, that is, admonishment of the right to remain
silent so as to avoid making self-incriminatory statements, and also of the right to representation by legal
counsel. Once the warning is given and if questioned, the defendant is well advised to refuse to answer.
That person also has the right to call for an attorney. However, if a person after being properly warned,
volunteers to give information, this information may be used against him or her at trial. Since 2010, the
United States Supreme Court has ruled that a suspect still have these rights but if a suspect waives these
rights and interrogation begins, the right to halt further interrogation must be asserted affirmatively by
explicitly invoking the Fifth and/or Sixth Amendments to the United States Constitution.
Some of the other important rights available to those arrested include:
[ ] The right to the presumption of innocence until proven guilty beyond reasonable doubt.
[ ] The right to a public defender at no cost to the defendant.
[ ] The right to a prompt initial hearing before a U.S. Magistrate Judge of the United States District Court
before whom the issue of pre-trial release must be addressed.
[ ] The right to an arraignment at which the criminal charge(s) are explained and the right to enter a plea
of "not guilty."
[ ] The right to post reasonable security or bail bond for pre-trial release.
[ ] The right to discovery of the government's evidence against the defendant, including exculpatory
evidence, that is evidence that are favorable to the defendant.
[ ] The right to suppress tainted evidence on constitutional or statutory grounds, to limit other evidence
(motion in limine), and to object to testimony at trial.
[ ] The right to a jury trial. A federal criminal jury is made up of twelve (12) citizens who reside in the
jurisdiction of the District Court.
[ ] The right to a speedy, public, and fair trial in open court, which includes the cross-examination of
[ ] The right to a verdict of acquittal for reasonable doubt. An unanimous decision is necessary for a
[ ] The right to a fair sentence commensurate with the nature of the offense if convicted.
[ ] The right to appeal a conviction for review by a United States Court of Appeals if one is returned
against the defendant (and discretionary review in the United States Supreme Court).
[ ] The right not to be tried a second time (double jeopardy) for the same charge.
Criminal proceedings in a United States District Court are governed by the Federal Rules of Criminal
Procedure, local rules of the United States District Court where applicable, and the Federal Rules of
Evidence. All actions of the federal prosecution are also subject to the limitations of the United States
Constitution and to the application of prior case decisions of the federal judiciary, beginning with those
decisions of the United States Supreme Court. WANGLAW will represent individuals charged
crimes involving U. S. immigration law.
Other Criminal Cases
In addition to criminal violations of federal immigration law, WANGLAW will represent
individuals charged with other crimes on a select basis. If you have been charged with a
non-immigration crime in either a Federal or a State court, please inquire for an initial
The Importance of Representation by An Attorney
A person arrested for a criminal violation will be charged with a felony which means he or she can
potentially be sent to prison for a year or more. The rules governing a federal criminal prosecution are
complex and subject to change. The timely advice of an attorney who is familiar with both criminal
procedure and immigration law is vital. The underlying immigration history, including proceedings before
Citizenship and Immigration Services (CIS), and the defendant's current immigration and nationality status
must be properly evaluated in order that the best defense be put forward in the criminal case.
Because of the serious consequences of conviction, the defendant has the right to a public defender at
no cost to himself or herself, provided that person qualifies by reason of financial need. In the alternate,
the defendant may decide to retain his or her own counsel. As a practical matter, this means that anyone
arrested should remain silent until after having consulted with an attorney and received legal advice from
A non-citizen who has been convicted of a felony are routinely subject to deportation and removal from
the United States but this usually occurs only after the prison time has been served. An immigration
"detainer" would be placed and a person would be transferred to immigration court for removal
proceedings after completion of the criminal sentence.
Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of these and other federal, state and local law are subject
to change and timely, competent counsel from a qualified legal professional on current and applicable law to particular facts is
indispensable. This website provides information of a general nature and such information cannot pertain to any specific set of facts, and
the provision of information cannot create any attorney-client relationship. For any particular situation, the visitor should obtain counsel
from a qualified legal professional. The publisher reserves the right to amend the contents of this website at any time and for any reason.
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