Immigration Defense Waivers in Federal Criminal Plea Agreements

• Citation: Vol. 69 No. 3
• Publication year: 2018

Immigration Defense Waivers in Federal Criminal Plea Agreements

Donna Lee Elm

Susan R. Klein

Elissa C. Steglich

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Immigration Defense Waivers in Federal Criminal Plea Agreements

by Donna Lee Elm^*

Susan R. Klein^**

and Elissa C. Steglich^***

Table of Contents

Introduction

I. Current Federal Immigration Waivers

II. Removal Decisions and Immigration Relief Options

A. Immigration Court Proceedings

B. Administrative Removal Proceedings

C. Judicial Removals

III. Securing Immigration Relief Despite Plea Waiver

A. Noncitizen Defendants Should Insist on Their Hearings in Immigration Court Despite the Waiver

B. Noncitizen Defendants Subject to Judicial Removal Orders Should Contest the Procedure

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C. Noncitizen Defendants Should Contest Waivers in Plea Agreements

D. Ethics Rules Prohibit These Waivers

E. Public Policy Prevents Enforcement Waivers

F. International Law Principles Prevent Enforcement of Waivers Conclusion

Introduction

Immigration policy is back on the American public's radar screen. The fields of immigration—a civil-law subject—and criminal law—a public-law subject—are quite distinct in both litigation practice and law school curricula.¹ With exceptions along the U.S.-Mexican border, only in a small minority of federal cases do criminal attorneys need to know more than some very basic premises of immigration law. Aside from some very general information necessary for defense attorneys to provide adequate advisements according to Padilla v. Kentucky² to their clients before entering guilty pleas and Continued Legal Education (CLE) training regarding what offenses have severe immigration consequences,³ the

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body of criminal practitioners have very little knowledge of the labyrinthine immigration law and its even more impenetrable regulations.

It is not surprising, then, that law schools similarly segregate the two areas of law. Criminal law is considered a core subject, and the vast majority of law professors who teach this are tenured or tenure-track professors. Immigration law, on the other hand, is a subject that may not yet be considered sophisticated by the academic elite and is not given the same level of attention.⁴ More law schools now offer immigration as a separate course, in addition (or separate) from an immigration clinic. While this divide is a topic for another day, it does help explain why criminal law practitioners and academics are not fully versed in immigration law, and vice-versa.⁵

The distinction is becoming increasingly problematic as the subjects continue to intertwine in very practical ways: federal criminal prosecution is now routinely used as part of border enforcement strategy, and interior immigration enforcement is done largely in cooperation with state and local policing.⁶ The Department of Justice (DOJ), under a new

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administration whose goal is to expand and accelerate removal of non-citizens,⁷ is taking advantage of this historical division.⁸ Intending to have its cake and eat it too, the Trump administration wants to retain the civil aspects of immigration law that most benefit the government (primarily that a non-citizen has no Sixth Amendment⁹ right to an attorney at the government's expense in deportation¹⁰ proceedings), while retaining the aspects of criminal law where the government holds all the cards (namely the coercive aspect of plea bargains that can include waivers of most of the defendant's substantive and procedural rights).¹¹

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By combining the greatest pro-government interests of both fields, prosecutors are best positioned to reach the current administration's goal to deport as many immigrants as possible.¹² Although the Authors do not comment on the propriety of this goal, we do take issue with the government's illegitimate means of achieving it by including waivers of immigration relief and challenges to deportability in criminal plea agreements.

This Article focuses on DOJ's inclusion of waivers of immigration relief in plea agreements for non-citizen federal defendants and proposes some challenges to these waivers. Federal district and appellate judges, immigration judges (IJs), and the Board of Immigration Appeals (BIA) members will find below legal grounds to decline to accept these waivers. Such tools are critical to combat this new federal immigration waiver propensity—which is especially disturbing in light of Attorney General Sessions' April 11, 2017 Memorandum requiring federal prosecutors to substantially broaden immigration prosecutions, and limiting discretion on whom not to deport.¹³ The government seeks waivers of critical rights without giving non-citizen defendants access to the tools and knowledge to make fully informed decisions.

In Part I, we review the language of immigration waivers, which widely varies by jurisdiction, and include an appended chart tracking waivers from each U.S. Attorney's Office that presently requests waivers as part of their standard plea agreements. In Part II, we briefly describe how removal orders are imposed by immigration judges, Department of Homeland Security (DHS) officers, and by federal district court judges, and discuss the effect these waivers will have in those proceedings. The

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Authors also include a discussion of the potential grounds of relief from removal, such as asylum, withholding of removal, and protection under the Convention Against Torture in conjunction with challenging the grounds for the deportation. Finally, we spend some time on the renewed use of a 1994 judicial removal statute,¹⁴ 8 U.S.C. § 1228.¹⁵

In Part III, we identify five methods for challenging these waivers. We first urge immigrants to demand hearings and to challenge the factual statements contained in the plea waivers. Next, we question the constitutionality of the judicial removal statute. Moving on, we suggest that defense attorneys who advise clients to sign these waivers may be providing ineffective assistance of counsel. Additionally, we note that ethics rules regarding competency prohibit most criminal defense attorneys from advising their clients regarding what immigration rights they are ceding, and similarly, prohibit prosecutors from seeking such waivers. Finally, we argue that public policy and international law obligations may prohibit enforcement of these waivers.

I. Current Federal Immigration Waiver Terms

Although federal prosecutors have sporadically included waivers of immigration relief in their plea agreements for many years (sometimes in "Fast-Track"¹⁶ sentencing agreements for immigrants in the country unlawfully), those will be used with increasing frequency and greater substantive breadth now. Given the present administration's

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prioritization of immigration prosecution,¹⁷ it is reasonable to anticipate a greater proliferation not only of prosecutions but also of these waivers in the near future.

Nevertheless, the DOJ has not offered its prosecutors any standard language for immigration waivers as of this writing.¹⁸ The most recent policy pronouncements regarding Fast-Track, like the PROTECT Act¹⁹ and DOJ's Sentencing Manual,²⁰ do not address immigration waiver language; rather, it only requires that the defendant agree to the factual basis and waive the right to ask for a variance, appeal, and collateral attack.²¹ This relatively recent Fast-Track memorandum does not speak to removal at all, let alone stipulated removal. In fact, most jurisdictions do not include any immigration waivers in plea agreements.²² In those districts incorporating immigration waivers, a variety of terms are employed. However, the effect of all these versions is the same: to circumvent immigration relief from removal, deportation, and exclusion.

A couple of districts use only general terms. For instance, in the Northern District of Alabama, plea agreements provide: "The defendant agrees to . . . waive any right he might otherwise have to contest his deportation and removal to [country of origin] ."²³ This is similar to the

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language used in the Eastern District of Tennessee: "The defendant waives any and all forms of relief from removal or exclusion, and agrees to abandon any pending applications for such relief and to cooperate with the Department of Homeland Security during removal proceedings."²⁴

Most districts, however, particularize their waivers. Three districts require defendants to explicitly agree to removal.²⁵ But even when that is absent, most districts with waivers require defendants to agree or admit that they are removable.²⁶ For example, in the District of Arizona, Eastern District of Louisiana, District of Nebraska, and the Southern District of Ohio, the "defendant admits that the defendant was the subject of a previous order of removal, deportation, or exclusion."²⁷ Similarly, in the United States District Court for the Eastern District of Michigan, a defendant "agrees to" be subject to removal.²⁸

When there are previous or existing removal orders, some U.S. Attorney's Offices require defendants to agree to the reinstatement or otherwise not oppose the execution of those orders.²⁹ Thus, five districts feature agreement terminology: "defendant agrees to the reinstatement of that previous order of removal, deportation, or exclusion."³⁰ Taking a converse approach, three districts feature language such that defendants may not contest their prior orders; the United States District Court for the Eastern District of Michigan has "defendant agrees not to contest, obstruct, or hinder in any way, such reinstatement at the end of the term of imprisonment imposed pursuant to this plea agreement,"³¹ and the United States District Court for the Southern District of Alabama has "defendant agrees not to contest, either directly or by collateral attack,

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the reinstatement of the prior order of removal."³² Finally, plea agreements in six districts indicate that the previously mentioned "not contest" waiver specifically applies to any appeal...