CAVEAT: This Article is based on guidance issued by the Attorney General in April 1995, prior to the First Circuit's decision in United States v. Clase-Espinal, 115 F.3d 1054 (1st Cir.), cert denied, 522 U.S. 957 (1997). A subsequent Memorandum issued by John C. Keeney in November 1997, "Giving Downward Departures In Exchange for Aliens' Stipulations to Removal From the United States," appears at Criminal Resource Manual 1999, and should be consulted as well.
A stipulated administrative deportation is predicated on the alien's admission of alienage and deportability. It also requires an alien's waiver of the right to an administrative hearing before an immigration judge, an administrative appeal, and judicial review of the final order of deportation. Generally, these admissions and waivers must be accomplished with advice of counsel. Defendant's counsel must file an appearance with the immigration court, and the defendant will be served with an INS "Order to Show Cause" (the charging document in an administrative deportation proceeding). After the alien stipulates to deportation, the stipulation, the Order to Show Cause, and counsel's notice of appearance must be presented by INS to an Immigration Judge, who will then issue the deportation order.
A stipulated order can be based on the conviction for an offense to which the alien defendant will plead guilty, 1932 provided it is one of the kinds of offenses that causes the alien to be deportable under 8 U.S.C. § 1251(a).
Typically, these would include certain crimes involving moral turpitude, 8 U.S.C. § 1251(a)(2)(A)(i) and (ii), or any aggravated felony, 8 U.S.C. § 1251(a)(2)(A)(iii). In addition, a plea to certain offenses relating to controlled substances, firearms, document fraud, and national security would cause an alien to be deportable. See 8 U.S.C. § 1251(a)(2),(3) and (4).
Alternatively, a stipulated administrative deportation order can be based on any of the numerous other grounds for deportation set forth in 8 U.S.C. § 1251(a) which may be applicable to the alien defendant (including certain prior state or federal criminal convictions, entry without inspection, or violation of nonimmigrant status, 8 U.S.C. § 1251(a)(1)(B) and (C)) even if they are entirely unrelated to the offense to which the alien defendant will plead guilty. These provide an effective basis for securing stipulated administrative deportation in connection with plea agreements. 1933
To obtain such stipulations, prosecutors may agree to recommend a one or two level downward departure from the applicable guideline sentencing range in return for the alien's concession of deportability and agreement to accept a final order of deportation. Such downward departure is justified on the basis that it is conduct not contemplated by the guidelines. See U.S.S.G. § 5K2.0. To ensure that the alien defendant is, in fact, deportable and that deportation can, in fact, be accomplished, prompt and close coordination with INS is required. INS has been directed to provide prompt and timely assistance to prosecutors seeking to effect the deportation of criminal aliens. Accordingly, prior to engaging in plea negotiations with an alien defendant, a prosecutor must notify the designated INS contact (a list of designated INS contacts is attached at Appendix A). 1931 INS will then advise the prosecutor whether the alien is subject to deportation, provide any necessary documents to obtain a stipulated deportation order, and serve an order to show cause on the alien. Prior concurrence of the designated INS contact is required before such a plea agreement is entered.
Plea agreements should, by their terms, contain the alien defendant's acceptance of an administrative order of deportation prior to or at the time of sentencing. If deportability will be based on the conviction to which the alien will plead guilty, the alien must accept the deportation order at the time of sentencing. However, if deportability will be based on independent grounds, such as entry without inspection, the deportation order can be obtained prior to sentencing. In any event, the deportation order will not be executed until after sentencing and the service of any term of incarceration that is imposed.
In addition, the agreement must provide that the defendant knowingly waives the right to any appeal or other challenge to the administrative deportation order, and that the defendant understands that his agreement to accept a deportation order will result in immediate deportation from the United States at the conclusion of any period of incarceration imposed as a result of the offense that is the subject of the plea agreement. Sample stipulations to administrative deportation for inclusion in plea agreements are attached at Appendices B 1932 and C 1933.
When administrative deportation is merely a collateral consequence of a guilty plea, the court is not required, pursuant to Rule 11, F.R.Cr.P., to advise a defendant of the possibility of deportation. However, when a defendant stipulates to deportation as part of a plea agreement, deportation becomes a direct consequence of the plea and, as noted above, may be the basis for a recommendation of a downward departure under the sentencing guidelines. Accordingly, it is imperative that when such a plea is entered, prosecutors urge the court to engage the defendant in a meaningful plea colloquy to establish a clear record concerning the factual basis for alienage and deportability and that the alien knowingly (1) waives his right to a deportation hearing before an immigration judge, (2) accepts the deportation order and understands that he will be deported from the United States at the conclusion of his incarceration, and (3) waives any and all rights to appeal, reopen, or challenge the deportation order in any way.In addition, at sentencing, prosecutors also should consider requesting the court to provide for deportation as a condition of supervised release, pursuant to 18 U.S.C. § 3583(d). (See discussion below.) The benefit of this approach is that if the alien subsequently reenters this country after deportation, he would be subject to immediate incarceration for violating the terms of supervised release, in addition to being subject to another criminal prosecution for reentry after deportation.