Tips for Defending an Immigration Prosecution in the Northern District of New York

By Courtenay McKeon, Assistant Federal Public Defender

Unless you took up residence under a rock in 2025, you’re likely aware that the Second Trump Administration has prioritized both civil and criminal immigration enforcement. Given the media coverage of this issue, the effects of those policies on practice in the Northern District of New York are somewhat surprising.

According to statistics from the District Court, the number of convictions for illegal entry (8 U.S.C. § 1325) changed little between the First Trump Administration (“Trump I”), the Biden Administration, and the Second Trump Administration (“Trump II”). During Trump I, the district averaged 135 convictions under § 1325 per year. During the Biden Administration, the yearly average was 128. During the first year of Trump II, there have been 122 convictions.

Convictions for alien transportation and smuggling (8 U.S.C. § 1324) were at their highest during the Biden Administration. During Trump I, the District averaged 31 convictions for alien smuggling/transportation per year. During the Biden Administration, that number rose to an average of 86 per year. This year that number fell to 62.

So why do so many of us feel like the immigration docket has grown exponentially this year? Probably because the number of convictions for illegal reentry (8 U.S.C. § 1326) has increased fairly dramatically since President Trump retook office in January. During Trump I, the District averaged 63 convictions for illegal reentry per year. During the Biden Administration, the yearly average fell to 35 convictions per year. This year, there were 103 illegal reentry convictions by early December.

The Federal Public Defender’s Office has been handling many, but not all, of these immigration cases. CJA Panel attorneys have been tasked with representing a fair number of immigration defendants, and that number is likely to increase in 2026. If you are a CJA panel member, you will likely be asked to take on one or more of these cases. Based on the FPD’s experience in these cases, here are six tips for defending an immigration case.

1. In immigration cases, as in all cases, the most important thing to do is listen to your client. Schedule a time to speak with them privately either before the initial appearance or as soon afterward as possible. Ask your client about their priorities. Most people charged with illegal entry or reentry want to finish their criminal cases ASAP so that they can move into the immigration system and be deported as quickly as possible. For them, speed is the most important thing. A minority of immigration clients, usually people who have lived in the United States for a substantial period of time and/or have close family here, want to slow down the criminal process (particularly if you can get them released) in order to stay in the U.S. longer. Your client’s position on this key issue should dictate much of your litigation strategy.
2. In all § 1325 and § 1326 cases, be sure that your client is an “alien.” Your client may have derived or acquired U.S. citizenship if they had a parent or grandparent who was a U.S. citizen. Citizenship law is quite complex, and often a client may not be aware that they have acquired or derived citizenship from a parent or grandparent. You should consult with an immigration attorney if there is any indication of a possible citizenship claim. Similarly, First Nation Canadians and Native Americans do not qualify as “aliens.” Assistant U.S. Attorneys (AUSAs) have been willing in some cases to dismiss charges where defense counsel can demonstrate that the client is not an “alien.”
3. In § 1326 cases, be sure that your client was “previously removed” or otherwise falls within the ambit of § 1326(a). An immigration judge’s grant of “voluntary departure” under 8 U.S.C. § 1229c is not a removal order. Rather, it is a form of relief from removal. A prior grant of voluntary departure therefore does not satisfy the “previously removed” requirement of 1326(a) as long as your client complied with the grant and departed. If your client previously voluntarily departed the United States, ask the AUSA to dismiss the § 1326 charge.
4. If speed is your client’s priority and there is an adequate factual basis for guilt, let the assigned AUSA know as soon as possible that your client wants to plead guilty. Ask if the AUSA and the Probation Office will agree to a combined change of plea/sentencing hearing. Put a letter on the docket requesting a combined hearing. With this method, it is possible to close an entire § 1326 case—from initial appearance to the completion of the client’s sentence—within as little as two weeks (although 4-6 weeks is more likely). Section 1325 cases go even faster. Section 1324 (alien smuggling) cases are more complicated and will likely take longer.
5. If speed is not your client’s priority, request a detention hearing and vigorously argue in favor of your client’s release. Even if you don’t succeed in getting your client released, litigating the issue will have a number of beneficial effects. First, your client will see that you are fighting for them. Second, you will have an impetus to contact people your client knows (employers, family, friends) and those contacts will be helpful as the case progresses. Third, you may receive discovery from the government earlier than you would otherwise. If your client is initially charged by complaint (as is almost always the case), consider whether to request a preliminary hearing.
6. Get your client’s complete alien file (“A-File”) from the government as soon as possible. You will be astounded by how inaccurate and incomplete many of these files are. It is not unusual for A-Files to contain documents that relate to an entirely different person from your client. This sloppiness is useful fodder if you take the case to trial.

Feel free to reach out to the Federal Public Defender’s Office if you have any questions about defending an immigration case. We are always happy to provide guidance.