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Immigration Defense Waivers in Federal Criminal Plea Agreements

48 Pages Posted: 4 Oct 2017 Last revised: 10 Oct 2017

Donna Lee Elm

University of Texas at Austin - School of Law

Susan R. Klein

University of Texas School of Law

Elissa Steglich

University of Texas at Austin - School of Law

Date Written: September 22, 2017

Abstract

This article focuses on DOJ’s inclusion of waivers of immigration relief in plea agreements for noncitizen federal defendants, and proposes some challenges to these waivers. Federal district and appellate judges, immigration judges, 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 AG Sessions’ April 11, 2017 Memorandum requiring federal prosecutors to substantially broaden immigration prosecutions, and that limits discretion on whom not to deport. The government seeks waivers of critical rights without giving noncitizen defendants access to the tools and knowledge to make fully informed decisions.

In Part I, we review the language of immigration waivers, widely varying 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 (“IJs”), Department of Homeland Security (“DHS”) officers, and by federal district court judges, and describe the effect these waivers will have in those proceedings. We 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 renewed use of a 1994 judicial removal statute, 18 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. Finally, we argue that public policy and international law obligations may prohibit enforcement of these waivers.

Keywords: Immigration, Federal, Plea Agreement, Criminal

Suggested Citation

Elm, Donna Lee and Klein, Susan R. and Steglich, Elissa, Immigration Defense Waivers in Federal Criminal Plea Agreements (September 22, 2017). Mercer Law Review Forthcoming; U of Texas Law, Public Law Research Paper No. 679. Available at SSRN: https://ssrn.com/abstract=3046713

Donna Elm

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Susan Klein (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1324 (Phone)
512-471-6988 (Fax)

HOME PAGE: http://www.utexas.edu/law/faculty/sklein/

Elissa Steglich

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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