Under the Department's interpretation of the statute, stipulated judicial deportation should be sought only if the offense to which the alien defendant will plead guilty causes him to be deportable under 8 U.S.C. § 1251(a)(2)(A). As in stipulated administrative deportation situations, prompt and close coordination with INS is necessary. Thus, prior to engaging in plea negotiations with an alien defendant, prosecutors should contact the designated INS contact for an assessment of the defendant's alienage, deportability, and the possibility he will claim relief from deportation. Sample stipulation language for inclusion in plea agreements is attached at Appendix J 1940.
Even if the alien defendant attempts to waive filing of a "notice of intent to request deportation," such notice should be filed because the court has discretion to exercise or decline jurisdiction over the request. Any plea agreement should be consistent with the guidance provided above for stipulated administrative deportation. Similarly, as previously noted, the Rule 11 inquiry must establish a clear record that the alien concedes alienage and deportability, knowingly waives a hearing, accepts the order of deportation knowing that it will result in his deportation from the United States at the expiration of his sentence, and knowingly waives any right to appeal, reopen, or otherwise challenge the deportation order.
At least 30 days prior to the date set for sentencing, a document charging alienage and identifying the crime that causes the alien to be deportable under 8 U.S.C. § 1251(a)(2)(A) must be filed. The allegations in the charging document must be consistent with Department policy as set forth above in General Concerns. Since the filing of the charge requires "concurrence of the Commissioner," such concurrence should be set forth on the charging document and signed by the INS District Director, or a letter referencing the charging document and signed by the INS District Director or other authorized INS official should be appended. The INS Commissioner's concurrence authority has been delegated to the INS District Director of each INS District Office. Delegation down to the level of Assistant District Directors and to the Officer in Charge, where applicable, is also authorized.
[cited in JM 9-73.500]