Federal Prosecutors Are Using Plea Bargains as a Secret Weapon for Deportations
Federal Prosecutors Are Using Plea Bargains as a Secret Weapon for Deportations
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November 16, 2017, 7:37 AM
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, materials from 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.
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A police officer and a security officer look on at the U.S. Immigration and Customs Enforcement office, part of the Department of Homeland Security, in
Washington, D.C. on Oct. 4, 2017.
Deported for Cheating
In May 2016, ICE agents in Philadelphia called their counterparts in Boston with a tip.
A student from China — named in court filings as “YY” — planned to take an English-language proficiency test on behalf of another Chinese national who was applying to colleges. After being removed from the exam room, YY admitted she was paid $100 to take the test using someone else’s passport, with the promise of an additional $800 if her score was high enough.
YY pointed ICE investigators to her business school classmate, Yue Wang, 25, who also admitted to taking tests for cash. Wang took the same English exam for three other Chinese women, all of whom used their fraudulent scores to secure student visas and admission to universities in Arizona, Massachusetts, and Pennsylvania. In total, court records show, Wang earned about $7,000 from the scheme.
Officials arrested Wang and the three other women in May on charges of “conspiracy to defraud the United States,” which carries a potential sentence of up to five years in prison and a fine of $250,000.
“By effectively purchasing passing scores, they violated the rules and regulations of the exam, taking spots at U.S. colleges and universities that could have gone to others,” William Weinreb, acting U.S. attorney for Massachusetts, said at the time of their arrests.
Wang signed a plea deal with Weinreb’s office in July that waived her right to a deportation hearing before an immigration judge. The agreement also waived her right to apply for asylum. With her signature, she swore that she had never been persecuted — and didn’t fear future persecution — in China.
“Similarly, Defendant further acknowledges and states that she has not been tortured in, and has no present fear of torture in, the People’s Republic of China,” the deal stated.
Two of the women who paid Wang to take the English exam — Xiaomeng Cheng, 21, and Shikun Zhang, 24 — signed agreements with identical provisions. All three were to be immediately deported back to China. Before giving her time-served and ordering her deported, the judge noted Cheng’s young age and the fact that she had no prior criminal history.
“I agree with the government that any fraud on the government, on the United States, is a serious crime, and that certainly applies here to the charge against you in this case,” the judge said during a sentencing hearing. However, she said, it was also important to consider Cheng’s motivation was to “gain access to certain educational opportunities here.”
Jane Peachy, the federal defender who represented Zhang, suggested these factors were lost in the plea-bargaining process.
Peachy said the prosecutor told her the provisions waiving immigration due process were “non-negotiable.” She recalled a “pre-Trump” case where Massachusetts prosecutors sought similar provisions, but ultimately agreed to remove the language at the bargaining table.
When The Intercept asked why the immigration waiver was non-negotiable in Zhang’s case, the U.S. Attorney’s Office for the District of Massachusetts declined to answer.
“We cannot comment on the details of a plea negotiation,” Christina DiIorio-Sterling, a spokesperson for the office, said in an email.
“There was nothing so horrible about Ms. Zhang or the crime that she committed that warranted such a rigid position on that part of the plea agreement,” Peachy said.
“Someone like Ms. Zhang is not a threat — she’s a young woman who came here to come to college and cheated on a test.”
The fourth woman has not signed a plea deal, according to the court docket.
Alarming Provisions
The language waiving immigration rights in plea agreements varies considerably, even within a single prosecutor’s office.
Federal prosecutors in Massachusetts signed a deal in 2014 with Dias Kadyrbayev, a Kazakhstani who became friends with convicted Boston marathon bomber Dzhokhar Tsarnaev while studying at the University of Massachusetts, Dartmouth.
Kadyrbayev pleaded guilty to hiding Tsarnaev’s laptop from FBI agents and obstructing the bombing investigation. A judge sentenced him to six years in prison. His plea agreement contained the same provisions regarding asylum and torture as the one Wang and her two co-defendants signed this year.
But in 2015, Massachusetts prosecutors signed a deal with a man from Mexico who pleaded guilty to distributing heroin. Notably, his agreement did not spell out explicit waivers of protection against persecution or torture but broadly waived his rights to apply for “any relief from deportability or removability from the United States that would otherwise be available.”
“We do not discuss the details of plea negotiations,” DiIorio-Sterling responded when asked about differences in wording. “Not all agreements are exactly the same.”
A search of court databases found recent plea agreements with asylum waivers in a handful of districts, including the Southern District of New York, the Northern District of Alabama, and the Southern District of Florida. Many of the identified cases involved terrorism-related charges.
Plea agreement language also varies state by state.
A Colombian man signed an agreement with prosecutors from the Middle District of Florida in 2016. He pleaded guilty to importing cocaine and heroin, and agreed to waive his “rights to any and all forms of relief from removal” and “cooperate with the Department of Homeland Security” in the deportation process. Prosecutors in the Eastern District of Tennessee signed a similar deal in a cocaine distribution case in 2014.
Elm, the Florida federal defender and expert in pleas, found immigration waivers in plea agreement templates from 15 of the nearly 100 federal districts around the country. Just before publishing a research paper on the subject in early October, she and her co-authors, two professors at the University of Texas at Austin School of Law, discovered prosecutors in the Southern District of Alabama also used immigration waivers.
After their paper was published, they found the same provisions in plea agreements in Utah.
“Given the present Administration’s prioritization of immigration prosecution, it is reasonable to anticipate a greater proliferation not only of prosecutions, but also of these waivers in the near future,” they wrote.
Many defenders who work at the intersection of criminal law and deportation said they were dismayed to hear about these kinds of plea agreements.
James Brink, a private defense attorney in Pittsburgh, said he has represented people from Ghana, China, and elsewhere who pleaded guilty to crimes and likely were deported, but he said he has never seen a deal waiving the right to an immigration hearing.
He pointed out that in many cases, ICE already is “waiting in the wings” to take defendants into custody and begin the deportation process in immigration court.
“Let the DOJ take their conviction, and let ICE take theirs,” Brink said. “There could be the potential for harm at home — there could be political implications at home.”
Claudia Valenzuela, who advises defense attorneys on immigration as part of her work at the National Immigrant Justice Center, called the provisions “alarming,” especially since some defendants might not realize they could qualify for relief. For example, she said, “some of our LGBT clients who don’t realize that being beaten or harmed is basis for seeking asylum.”
“They’ve been harmed all their lives in different ways,” she said. “They don’t realize that this would be a claim.”
Cohen said in an email that he hopes the Justice Department will not continue to insist on the waivers.
“Politics,” he said, “has superseded common sense.”
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