Immigration Defense Waivers in Federal Criminal Plea Agreements

Immigration policy is back on the American public\u27s 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. With exceptions along the U.S.--Mexican border, only in a small minority of federal cases do criminal attorneys need to know more than some very basic premises of immigration law. Aside from some very general information necessary for defense attorneys to provide adequate advisements according to Padilla v. Kentucky to their clients before entering guilty pleas and Continued Legal Education (CLE) training regarding what offenses have severe immigration consequences, the body of criminal practitioners have very little knowledge of the labyrinthine immigration law and its even more impenetrable regulations. ... This Article focuses on DOJ\u27s 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\u27 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\u27s 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\u27 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