(C) Prosecution Policies Respecting Deportation.  It is important to be aware of policies of the particular prosecutor’s office respecting plea bargaining to avoid deportation. 

 

                (1)  Federal Policies.  Before Congress enacted specific legislation governing stipulated orders of removal,[1] see § 6.20, supra, circuit courts disagreed on whether a prosecutor could bind federal immigration authorities by making promises in a plea agreement with a noncitizen defendant concerning deportation or other immigration consequences.[2]  Congress provided by statute that a plea agreement specifically relating to deporta­tion requires DHS agreement.[3]  By regulation, as well, federal prosecutors lack the authority to bind immigration authorities unless they obtain written consent from the immigration authorities and otherwise comply with the pertinent federal regulations.[4]  This statute, however, may not resolve situations in which the agreement affects immigration-related issues other than deportation, such as inadmissibility or relief from removal or deportation.  Moreover, courts have held that a plea agreement that specifies a fact, such as the loss to the victim, is binding on immigration authorities as to that fact.[5]

 

                On April 28, 1995, the Attorney General issued a memorandum to all federal prosecutors entitled Deportation of Criminal Aliens. The policy guidance set forth in this memorandum is significant because, for the first time, the Attorney General directed that all federal prosecutors become actively and directly involved in the process to remove criminal aliens from the United States.[49]  The Department of Justice apparently disfavors the judicial deportation process,[50] but favors instead using summary deportation provisions applicable to noncitizen aggravated felons not lawfully admitted for permanent residence.[51]  On August 24, 1995, the INS final rule implementing this new procedure was published.[52]  “The availability of this new summary procedure may prove to be a faster and less burdensome method of effecting the deportation of such aliens, as opposed to seeking judicial deportation orders to accomplish the same result.” [53]

 

                The policy favors deportation of all deportable noncitizens absent “extraordinary circumstances”:

 

This Administration is committed to effecting the deportation of criminal aliens from the United States as expeditiously as possible.  . . . All deportable criminal aliens should be deported unless extraordinary circumstances exist. Accordingly, absent such circumstances, Federal prosecutors should seek the deportation of deportable alien defendants in whatever manner is deemed most appropriate in a particular case. Exceptions to this policy must have the written approval of the United States Attorney or a designated supervisory Assistant U.S. Attorney. In cases handled exclusively by one of the Department’s litigating divisions, an exception to the policy must have the written approval of the appropriate Assistant Attorney General or Deputy Assistant Attorney General. [54]

 

                Federal regulations prohibit federal prosecutors from making plea agreement promises to defendants concerning the immigration consequences of a disposition without the express written agreement of the Department of Homeland Security.[55]  See § 8.16(C), supra. 

 

                (2)  State Policies.  State prosecutors will normally refuse to make any promises whatever concerning what the federal immigration authorities might or might not do.  The DHS is increasingly communicating with state prosecutors, urging them not to cooperate with defense efforts to negotiate immigration-safe dispositions, or not to cooperate in vacating prior convictions to avoid immigration consequences.  The way some prosecutors frame the issue is that they refuse, or claim it would be unconstitutional for them, to ameliorate the charges with respect to a noncitizen defendant when they would not do so for a defendant who is a United States citizen.  They may claim that they do not wish to thwart the will of Congress by interfering with the deportation process.

 

                (3)  Counter Arguments.  Counter-arguments include the following:  Noncitizen defendants suffer consequences far worse than U.S. citizens for the same offense, which is not fair or appropriate.  Prosecutorial discretion is broad, and should include the totality of the circumstances, including the collateral consequences of a conviction on the defendant and his innocent family members.  It is not appropriate for the prosecution to pretend that the immigration disaster will not occur.  Congress did not intend for a noncitizen convicted of a theft offense, for example, to be deported as an aggravated felon unless a sentence of 365 days or more was in fact imposed.  Therefore, we are not thwarting the will of Congress by obtaining a sentence imposed of 364 days.  See also § § 8.19(B), 8.22, infra. 

[56] This is now codified at 8 U.S.C. § 1228(c)(5).

[57] Compare United States v. Igbonwa, 120 F.3d 437 (3d Cir. 1997) (prosecutor’s agreement with the defendant that the government would not deport him if he cooperated in criminal investigation could not bind other federal agencies, even those under the supervision of the Attorney General), and San Pedro v. United States, 79 F.3d 1065, 1072 (11th Cir. 1996) (finding prosecutor had no author­ity to bind immigration authorities, even by signing a written agreement), with Thomas v. INS, 35 F.3d 1332, 1334 (9th Cir. 1994) (prosecutor had implied authority to enter into written plea agree­ments relating to deportation, effectively binding the United States government as a whole), and Margalli-Olvera v. INS, 43 F.3d 345, 354 (8th Cir. 1994) (same).

[58] INA § 238(d)(5), 8 U.S.C. § 1228(d)(5).

[59] 28 C.F.R. § 0.197.

[60] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002).

[49] See U.S. Attorney’s Manual § 1919, available at www.usdoj.gov. 

[50] “With regard to the recently enacted judicial deportation provisions set forth in Section 242A(d) of the Immigration and Nationality Act, 8 U.S.C. § 1252a(d), the memorandum notes that there are ambiguities that may make implementation problematic . . . .”  (Ibid.)

[51] INA § 242A(b), 8 U.S.C. § 1252a(b).

[52] 60 Fed. Reg. 43954 (Aug. 24, 1995).

[53] See U.S. Attorney’s Manual § 1919, available at www.usdoj.gov. 

[54] See U.S. Attorney’s Manual § 1920, available at www.usdoj.gov. 

[55] 28 C.F.R. § 0.197 (“The Immigration and Naturalization Service (Service) 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.”).

Ninth Circuit

REMOVAL - ENFORCEABILITY OF FEDERAL PROSECUTOR'S PROMISE NOT TO DEPORT
Morgan v. Gonzales, __ F.3d __, 2007 WL 2127707 (9th Cir. Jul. 26, 2007) (United States is not estopped from removing an aggravated felon based on governments alleged agreement not to deport him in exchange for his cooperation in a federal drug prosecution where there was no claim that an official having the authority to do so made a specific promise of such relief).

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "PROSECUTION ENCOURAGED TO CONSIDER IMMIGRATION CONSEQUENCES IN PLEA BARGAINING
Although Padilla does not require prosecutors to consider immigration consequences, it certainly encourages them to consider such consequences during plea negotiations. The decision states that informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea- bargaining process. Padilla, 2010 U.S. LEXIS at *30. The Court recognized that immigration consequences often stem directly from criminal convictions, and are often even more important to a defendant than the criminal sentence he faces. Id. at *21. In light of the Padilla decision, defense counsel should encourage prosecutors to consider the immigration consequences to noncitizen clients during plea negotiations.