Immigration Defense Waivers in Federal Criminal Plea Agreements

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. 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. The Department of Justice (DOJ), under a new administration whose goal is to expand and accelerate removal of non- citizens, is taking advantage of this historical division. 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 Amendment right to an attorney at the government’s expense in deportation 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). 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. 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. 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 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, 8 U.S.C. § 1228. 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.