ATTORNEY GENERAL JEFF Sessions is pushing federal prosecutors to bypass immigration courts as part of the Trump administration’s hard-line strategy on deportation. Behind closed doors, prosecutors are pressing noncitizens to sign away their rights to make a case for remaining in the country.
In the most dramatic cases, immigrants charged with crimes are signing plea agreements in which they promise they have “no present fear of torture” on returning to their home country. The pleas can block them from seeking asylum or protection from persecution.
While plea agreements such as these are not entirely new — and are difficult to track — some defense attorneys who specialize in immigration fear they will become commonplace under Sessions. They’re also concerned prosecutors will push them for minor crimes that previously might not have led an immigration judge to order deportation.
Immigration experts question the fairness of such provisions in plea agreements and even their overall constitutionality. Some say they might violate international treaties.
Susan Church, an attorney who was one of the first to sue the government over President Donald Trump’s executive orders, said the leverage prosecutors hold at the plea-bargaining table heightens the risk of abuse.
“Obviously I have seriously grave concerns about eliminating the small level of due process that’s afforded to immigrants in immigration court,” she said. “They absolutely should not be proposed as part of a plea agreement.”
An examination of court records, memos from the Department of Justice, and other documents, as well as interviews with lawyers, suggest federal prosecutors are increasingly likely to demand plea bargains in which noncitizens sign away these due process rights.
In one recent case in Massachusetts, the prosecutor said the provisions were “non-negotiable,” according to the defendant’s attorney.
In a
memo in April, Sessions directed all federal prosecutors to place higher priority on certain immigration offenses, including improper entry, illegal re-entry, and unlawful transportation of undocumented immigrants. He further instructed prosecutors, when possible, to seek “judicial orders of removal” that enable federal judges to order deportation without any hearing in immigration court.
“I know many of you are already seeking these measures from District Courts,” Sessions wrote. “I ask that you continue this effort to achieve the results consistent with this guidance.”
Three months later, in his
regular bulletin to U.S. attorneys, Sessions invited attorneys from Immigration and Customs Enforcement to share tips on what they called a “game-changer”: Make deportation part of plea agreements offered to noncitizens charged with crimes.
This “seldom used” strategy would “offer a powerful and efficient tool for prosecuting criminal aliens — one that provides enormous value to the Department of Homeland Security (DHS) and furthers new Department of Justice policy,” the how-to memo stated. It went on to list benefits, including using the waivers “as a bargaining chip to negotiate a plea with a defendant who is less interested in fighting removal than in litigating the prison sentence.”
Michael Cohen, a former federal prosecutor who is now a criminal defense attorney in Florida and New York, said he had heard about the Justice Department’s new strategy but has yet to see it in action. He said he would be extremely hesitant to advise a client to sign such a waiver.
However, Cohen said, an individual prosecutor might not have the same discretion in light of the administration’s directives.
“You’re duty-bound to follow your office’s policies,” he said. “I understand that.”
Devin O’Malley, a spokesperson for the Justice Department, said these types of plea agreements can “increase the efficiency of the immigration court system, save Americans’ tax dollars, and promote good government.”
“This common-sense commitment to the rule of law will help reduce pressure on the immigration court pending caseload that has more than doubled since 2011,” O’Malley said in an email.
While district offices declined to discuss plea waiver language,
materialsfrom a Senate Judiciary Committee hearing in 2008 pointed to how some prosecutors might be “hesitant to use it as a general practice.”
The same report noted the rarity with which plea agreements had been used to order the deportation of immigrant defendants: 160 times between fiscal year 2002 and fiscal year 2008. In the same time period, ICE removed more than 1 million people, according to data analyzed by the Transactional Records Access Clearinghouse, run by
Syracuse University.
Donna Lee Elm, who is in charge of federal public defenders in the Middle District of Florida and an expert on plea bargain waivers, said the Justice Department’s new tactics are affecting many people who “actually should be entitled to be heard in immigration court.”
“They’re using the hammer of threat of prosecution and a long prison sentence to give up the rights in an immigration case,” she said.
Waiving a hearing in immigration court is not trivial. In the past five years, about 30 percent of noncitizens charged with crimes have succeeded in convincing an immigration judge to let them stay in the country, according to TRAC data.
Elm said some of the plea agreements likely are violating decades-old international treaties, in which the federal government vowed to enable people to seek asylum in this country.
“You can’t waive that — it’s not like waiving the right to trial,” she said. “They just didn’t think these through.”
In the July 2017 bulletin, one federal prosecutor from Louisiana,
Dominic Rossetti, described how the immigration hearing process can be ineffective and
wondered “if there might be a better way to effect these removals.”
In one section of the memo — “
The Elephant in the Room” — Rossetti shared his frustration trying to prosecute a convicted criminal for “failure to depart.” He wrote that the defendant’s experiences were “truly terrifying” to the point that a jury might sympathize with the horror the defendant might face upon return.
Rossetti described how he prosecuted Innocent Safari Nzamubereka, a man who
fled Rwanda as a teenager during the genocide in the mid-1990s after witnessing the rape of his mother. Nzamubereka testified his father was decapitated, and he saw “a lot of kids getting their head[s] chopped off.” He was granted asylum and had children in the U.S.
But in 2008, he was convicted of aggravated assault, for which he served three years of a six-year prison sentence. According to testimony, Nzamubereka fired a gun at the mother of two of his children and her sister. He maintained his innocence.
Nzamubereka’s felony conviction prompted immigration officials to serve him with a notice to “terminate his asylum status” and “appear for removal proceedings.” When an immigration judge terminated his asylum status in 2012, Nzamubereka refused to return to Rwanda.
In the memo, Rossetti explained how he was concerned that “if the jury heard about these emotional and prejudicial facts” of what happened to him in Rwanda, “they would return a verdict inconsistent with the law.”
During the trial, over Rossetti’s objections, Nzamubereka briefly spoke about why he fled.
“The only thing that saved me is I covered myself up with a whole bunch of dead kids,” he told the jury. “That’s why I’m alive today, and that’s why I’m not going back over there.”
Rossetti pointed to how Nzamubereka did not seek protection under the international torture treaty or avail himself of the other avenues by which he might have challenged his deportation. The jury found him guilty, and an appeals court affirmed his conviction for failure to depart last year.
“Nzamubereka is scheduled to be released in August of 2018, which begs the question —what next?” Rossetti asked in the memo. There will be a “valid order of removal against him,” and he will “be transferred into immigration custody,” Rossetti wrote, but then “it seems very likely that the whole process will begin again.”
“HSI [Homeland Security Investigations] will attempt to remove him, and in all likelihood, he will hamper the process again,” he wrote. “This makes a person wonder if there might be a better way to effect these removals, but that is another topic for another day.”
While Nzamubereka never signed away his rights to seek asylum in a plea agreement, Rossetti’s advice provides another window into the discussions among federal prosecutors about implementing deportations.
