Criminal Defense of Immigrants

The U.S. Attorney, with the concurrence of the Commissioner of the DHS, may enter into a plea agreement in which a deportable noncitizen waives the right to notice and a hearing and stipulates to the entry of a judicial order of deportation as a condition of the plea agreement or probation.  U.S. district court judges in felony and misdemeanor cases, and U.S. magistrate-judges in misdemeanor cases, may accept such a stipulation and have jurisdiction to enter the judicial order of removal.[1]  The U.S. Attorney’s Office cannot force the DHS to agree to such an arrangement.[2]

                According to the U.S Attorney’s Manual, this should be sought “only if the offense to which the defendant will plead guilty causes him to be deportable under” what is now 8 U.S.C. 1227(a)(2)(A).[3]  Moreover, “the Rule 11 inquiry must establish a clear record that the alien concedes alienage and deportability, knowingly waives a hearing, accepts the order of deportation knowing that it will result in his deportation from the United States at the expiration of his sentence, and knowingly waives any right to appeal, reopen, or otherwise challenge the deportation order.” [4]

                     In a case in which the court ordered deportation, the fact of deportation was found not to void the sentence imposed by the court for other purposes.[5]  In the illegal re-entry context, the circuits have split on the question whether the defendant’s status as a deportable noncitizen can constitute grounds for a downward departure.[104]  A court may sometimes depart downward in return for the defendant’s waiver of the right to contest deportation, but only if the defendant had some sort of colorable defense to deportation.[105]  These cases could theoretically be used to allow for downward departure in non-illegal re-entry cases as well.

                The government is attempting to expand the use of stipulated removal orders issued by United States District Courts during sentencing proceedings. Reports of coercion and abuse have been received, in which noncitizens are (1) locked up in one room and told to sign the stipulation or they would not be able to leave the room, (2) told that if they do not sign, ICE “may have to” look into their family’s immigration situation, (3) been made to sign the form without the benefit of watching the video tape explaining their rights, and (4) told that if they do not sign the form they would have to stay in jail for a long time and would not be able to obtain bond.

                In a proceeding involving a stipulated judicial order of removal, a judge should include an immigration advisement consistent with the ABA Standards[8] in the court colloquy even where statute or case law does not require it.

[106] INA § 238(c)(5), 8 U.S.C. § 1228(c)(5).

[107] Assistant United States Attorneys lack the authority to bind immigration authorities unless the immigration authorities give their written assent and otherwise comply with 28 C.F.R. § 0.197.

[108] U.S ATTORNEY’S MANUAL, Title 9, Criminal Resource Manual, § 1929 – Stipulated Judicial Deportation.

[109] Ibid.

[110] United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir. Apr. 18, 2006) (noncitizen sentenced to 4-6 years imprisonment for delivery of a controlled substance, with a further court order suggesting immediate deportation if deemed appropriate by the DHS, and actually deported 26 days later, is considered to have been sentenced to 6 years imprisonment for purposes of illegal re-entry sentencing enhancement; court rejected argument that order for immediate deportation was essentially an alternative suspended sentence).

[111] United States v. Olivares, 473 F.3d 1224 (D.C. Cir.  Dec. 19, 2006)(court of appeals affirmed sentence, rejecting claim district court erred in denying a downward departure because the defendant was a noncitizen facing deportation); United States v. Farouil, 124 F.3d 838 (7th Cir. 1997)(status as a deportable noncitizen constitutes lawful ground for downward departure); United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994)(status as deportable noncitizen can, in rare circumstances, support downward departure); United States v. Nnanna, 7 F.3d 420 (5th Cir. 1993)(status as deportable noncitizen not a basis for downward departure); United States v. Veloza, 83 F.3d 380 (11th Cir. 1986).

[104] United States v. Ramirez-Marquez, 372 F.3d 935 (8th Cir. July 8, 2004) (to receive downward departure for waiving deportation rights defendant must demonstrate colorable defense to deportation and that waiver of that defense would substantially assist administration of justice); United States v. Jauregui, 314 F.3d 961 (8th Cir. 2003) (defendant’s waiver of an administrative removal hearing during sentencing for illegal re-entry was a waiver of substantial rights and substantially assisted in the administration of justice, so convicting court may use its discretion in granting motion for downward departure despite government refusal to join the motion).

[105] ABA Standards for Criminal Justice: Pleas of Guilty, Standard 14-1.4(c). See United States v. Del Rosario, 902 F.2d 55, 61 (D.C. Cir. 1990) (Mikva, J., concurring) (“The possibility of being deported can be — and frequently is the most important factor in a criminal defendant’s decision how to plead. . . .  I would hope that the Rules Committee of the Judicial Conference would consider amending Rule 11 [Federal Rule of Criminal Procedure] . . . to require a judge taking a guilty plea to inform an alien that plead­ing guilty might result in deportation at least when the judge is made aware of the alien’s status before accepting his plea”).