Criminal Defense of Immigrants

 

If the court releases the noncitizen from custody prior to beginning to serve a sentence to incarceration, the noncitizen defendant could leave the United States (or come in contact with the DHS and be deported).  The court would then issue a bench warrant to arrest him or her to begin the sentence, which would be executed when and if the individual returns to the United States.  This arrangement would have the effect of avoiding the necessity for service of the sentence.  If possible, this should be arranged in advance explicitly to avoid criminal liability for failure to appear to serve sentence or any suggestion that counsel participated in an illegal act on the part of the client.

 

                In Connecticut, if a person has a prior final order of deportation and is arrested on a state crime, a statute allows a judge to suspend a sentence.  The Connecticut statute, providing both the judge and the prosecution agree, allows the judge to accept an agreement in the state trial court that the client will be sentenced but does not have to serve it.  Instead, the client is released to ICE for deportation to his or her home country instead of serving the state sentence.  The client must agree that s/he re-enters the United States, s/he will be penalized and serve the full sentence. 

 

In negotiating for this disposition, counsel can point out, for example, that upon removal from the United States, the defendant would lose his status as a lawful permanent resident.  Within five years of his departure,[112] s/he would also be inadmissible as a noncitizen previously ordered removed.  If s/he were to attempt to re-enter the United States unlawfully, s/he would additionally be found inadmissible,[113] and could face prosecution,[114] for which a sentence of ten years may be imposed.  These penalties would be in addition to the consecutive service of any prison sentence in the original criminal case.

 

                If the court in fact suspends execution of sentence, and orders the defendant released from criminal custody prior to reporting to begin service of a custodial sentence, the defendant might, in fact, be released into immigration custody pursuant to an immigration hold, and be deported prior to the commencement of sentence. 

 

It is important to be aware that federal regulations provide the DHS shall not be bound by any Plea Agreement restricting its authority to remove criminal defendants.[115]  To avoid involving the DHS, the parties could include, in a federal Plea Agreement, language such as the following:

 

            The parties hereby stipulate, under 8 U.S.C. § 1228(c)(5), that the defendant, AB, will be deportable under 8 U.S.C. § 1227(a)(2)(A)(ii), for conviction of multiple crimes of moral turpitude when the guilty pleas are entered as agreed in this plea agreement.

 

            The parties stipulate that the offenses of conviction in this case are non-violent offenses and that the removal of the defendant from the United States prior to the completion of any sentence of imprisonment imposed for these offenses is appropriate and in the best interest of the United States.

 

            The defendant admits that he is not a citizen or national of the United States; that he is a native and citizen of XX, that he was granted Lawful Permanent Resident status in the United States on or about MMDDYY; and that he was convicted in the United States District Court, Northern District of California, on the dates on which the pleas of guilty are entered under this plea agreement.  The defendant concedes that he is an alien who, upon entry of the please of guilty under this plea agreement, will stand convicted of two or more crimes involving moral turpitude (other than a purely political offense), or an attempt or conspiracy to commit such crimes, thereby rendering him removable from the United States under 8 U.S.C. § 1227(a)(2)(A)(i)(II), Immigration and Nationality Act § 237(a)(2)(A)(i)(II).

 

            The defendant waives his right to notice of immigration proceedings, and waives his right to removal proceedings before an immigration judge. 

 

            The defendant hereby agrees to comply with the entry of a judicial order of removal from the United States as a condition of this plea agreement, or a condition of probation, or supervised release, or both, and agrees to depart from the United States at his own expense, pursuant to 8 C.F.R. § 241.7 (self-removal).

 

            The defendant also agrees to cooperate with United States Immigration and Customs Enforcement to permit official verification of his departure from the United States, or to appear at a United States embassy abroad to verify his departure from the United States, within thirty (30) days of his departure. 

            The defendant agrees that he will not attempt to re-enter the United States. The defendant agrees that if he is found within the United States, after his departure under this agreement, he will be required to serve the full sentence ordered by the court in this case consecutively with any term of imprisonment that may be imposed for illegal re-entry.

 

            The defendant agrees that this Agreement binds the United States Attorney’s Office for the Northern District of California only, and does not bind any other federal, state or local agency, including the Department of Homeland Security.

 

            The parties therefore stipulate that the court may enter a judicial order removing AB from the United States.  The parties also stipulate that the court may impose and suspend execution of sentence in this matter pending the deportation or self-removal of AB.

 

If the prosecutor or court will not agree to this plan of action, it is possible to seek a less overt solution as follows:

 

Notwithstanding these guideline calculations, I understand that at the time of sentencing my attorney -- on my behalf -- may ask the Court to consider staying execution of any prison sentence upon such terms and conditions as the Court deems just and appropriate.

 

The parties hereby stipulate, under 8 U.S.C. § 1228(c)(5), that the defendant, AB will be deportable under 8 U.S.C. § 1227(a)(2)(A)(ii), for conviction of multiple crimes of moral turpitude when the guilty pleas are entered to the convictions reflected in this plea agreement.  The defendant hereby waives his right to notice of immigration proceedings, and waives his right to removal proceedings before an immigration judge.

 

The defendant admits that he is not a citizen or national of the United States; that he is a native and citizen of XX, that he was granted Lawful Permanent Resident status in the United States on or about MMDDYY, and that he was convicted in the United States District Court, Northern District of California, on the dates on which the pleas of guilty are entered under this plea agreement.  The defendant concedes that he is an alien who has been convicted of two or more crimes involving moral turpitude (other than a purely political offense), or an attempt or conspiracy to commit such crimes, thereby rending him removable from the United States under section 212(a)(2)(A)(i)(I) of the Immigration and Naturalization Act.

           

The defendant thereby agrees voluntarily to comply with entry of a judicial order of deportation from the United States as a condition of this plea agreement, or a condition of probation, or supervised release, or both.

 

If the prosecutor and court do not agree to this version, it is possible to try the following:

 

            The parties to this Plea Agreement agree that the court, in its discretion, may suspend execution of sentence in this case to allow the defendant to leave the United States voluntarily prior to the commencement of service of sentence, or to allow the Department of Homeland Security to remove the defendant from the United States prior to the commencement of service of sentence if it determines to do so.  I agree that this Agreement binds the United States Attorney’s Office for the Northern District of California only, and does not bind any other federal, state or local agency.  This Plea Agreement therefore does not bind the Department of Homeland Security in any way.  The DHS is free, in its sole and exclusive discretion, to remove or not remove me from the United States or take any other action notwithstanding this Plea Agreement.

 

I agree that I will not attempt to re-enter the United States. I agree that if I am found within the United States, after my departure under this agreement, I will be required to serve the full sentence ordered by the court in this case consecutively with any term of imprisonment that may be imposed for illegal re-entry.

 

These efforts would, if successful, allow the defendant to receive a custodial sentence, but not serve it, and then be released to an immigration hold to be deported without serving the sentence.

 

This tactic may be defeated if the criminal prosecutor informs DHS of an objection to deportation prior to service of sentence in the criminal case, since the DHS is statutorily precluded from deporting an immigrant over the objection of the criminal prosecutor.  The regulations provide that no noncitizen shall depart from the United States if his or her departure would be prejudicial to the interests of the United States, and specifically list a noncitizen who is a fugitive from justice on account of an offense punishable in the United States,[5] or one “who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States:  Provided, That any alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part.”[6]

[116] Ten years in the case of a second or subsequent removal, and permanently if convicted of an aggravated felony.  INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i).  See § 18.10, infra.

[117] INA § 212(a)(9)(C)(i)(II), 8 U.S.C. § 1182(a)(9)(C)(i)(II).  See § 18.10, infra.

[112] INA § 276, 8 U.S.C. § 1326.  See § 15.39, infra.

[113] 28 C.F.R. § 0.197, 61 Fed. Reg. 48406 (Sept. 13, 1996) (“The [DHS] shall not be bound, in the exercise of its authority under the immigration laws, through plea agreements, cooperation agreements, or other agreements with or for the benefit of alien defendants, witnesses, or informants, or other aliens cooperating with the United States Government, except by the authorization of the Commissioner of the Service or the Commissioner’s delegate.  Both the agreement itself and the necessary authorization must be in writing to be effective, and the authorization shall be attached to the agreement.”).

[114] 8 C.F.R. § 1215.3(f).

[115] 8 C.F.R. § 1215.3(g).  See also 8 C.F.R. § § 215.3(f), (g); 22 C.F.R. § § 46.3(f), (g).