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1999

Giving Downward Departures In Exchange for Aliens' Stipulations to Removal From the United States


TO:        ALL UNITED STATES ATTORNEYS
           ALL FIRST ASSISTANT UNITED STATES ATTORNEYS
           ALL CRIMINAL CHIEFS

FROM:      John C. Keeney
           Acting Assistant Attorney General
           Criminal Division

           Donald K. Stern
           United States Attorney
           District of Massachusetts
           Chair, Attorney General's Advisory Committee

SUBJECT:   Giving Downward Departures In Exchange for Aliens' Stipulations
to
           Removal From the United States

ACTION REQUIRED: Please distribute to all AUSAs who handle cases involving
                 alien defendants

CONTACT PERSON:  Joseph E. Koehler
                 Counsel to the Director
                 (202) 616-0188
                 aex15.po.jkoehler

      On April 28, 1995, the Attorney General issued a memorandum in which
she
authorized certain downward departures to be given in exchange for an
alien's
agreement to be deported as part of a plea agreement in a criminal case.
Numerous districts have implemented the memorandum in varying fashions.  As
set
forth below, two recent legal developments may impact whether or how United
States Attorneys' offices apply the departure policy described in the
Attorney
General's memorandum.

      First, in the Illegal Immigration Reform and Immigrant Responsibility
Act
(IIRAIRA), Pub. L. No. 104-208, 110 Stat. 1570, 1701-1703 (1996), Congress
amended the Immigration and Nationality Act to provide for administrative
reinstatement of prior deportation, exclusion and removal orders.  This
change
in the law eliminates cumbersome deportation proceedings for most
previously-
deported aliens.  In addition, IIRAIRA provides for administrative
deportation
of non-permanent-resident aliens who are convicted of aggravated felonies,
again
streamlining the removal process.  These statutory changes combine to
substantially reduce the benefit the Government derives solely from an
alien's
concession of alienage and stipulation to removal from the United States.

      Second, in United States v. Clase-Espinal, 115 F.3d 1054 (1st Cir.),
cert denied, 522 U.S. 957 (1997), the Court of Appeals for the First
Circuit held an alien's stipulation of alienage and waiver of deportability
in a plea agreement do not in themselves justify downward departure, at
least in the absence of a non-frivolous defense to deportation.

      In light of these recent developments, the Department is evaluating
whether
the policy set forth in the April 28, 1995, memorandum remains appropriate.
In
the interim, prosecutors should not enter into agreements providing for a
recommendation of a downward departure unless the Government receives an
articulable benefit not contemplated by the Sentencing Guidelines.

      EDITOR'S NOTE: See also Criminal Resource
Manual 1921.

[updated August 2000] [cited in Criminal Resource Manual 1932; Criminal Resource Manual 1933]