Rachel Frankel · February 2009
77 GEO. WASH. L. REV. 431 (2009)
Imagine a lawful permanent resident (“LPR”), an immigrant alien with a “Green Card,” is involved in a bank robbery. The LPR drives a co-conspirator to the bank and waits outside as the getaway driver. While inside the bank, the co-conspirator uses a gun to wound a bank security guard who tries to stop the robbery. The LPR later is arrested and charged with armed bank robbery and assault with a deadly weapon. The deportation requirements of the Immigration and Nationality Act (“INA”) require aliens convicted of such aggravated felonies to be deported. Because his status as an LPR will subject him to this mandatory deportation, the LPR refuses to cooperate with the United States Attorney’s Office by providing information about his co-conspirator. Such a refusal to cooperate makes it more difficult for the government to successfully prosecute the major participant in the crime in addition to prosecuting the LPR who was a minor participant in the crime.
LPRs who are minor participants in a crime may not want to cooperate with law enforcement agencies when such cooperation will subject them to the INA’s mandatory deportation requirements. Many LPRs have appealed their convictions and sought to withdraw their guilty pleas precisely because they would not have initially pled guilty had they been aware of the INA’s mandatory deportation requirements.
To create an effective incentive for cooperation by LPRs who are minor participants in a crime, this Note proposes a two-step solution. First, Congress should override, or the Department of Homeland Security (“DHS”) should repeal, section 0.197 of Title 28 of the Code of Federal Regulations (“CFR”), which prohibits cooperation agreements that promise nondeportation without the consent of the Under Secretary for Border and Transportation Security at DHS (“DHS Under Secretary”). Second, because the mandatory deportation requirements that accompany criminal convictions discourage LPRs from cooperating with law enforcement agencies, prosecutors should exercise discretion and grant temporary deportation immunity to LPRs who are minor participants in a crime. Under this framework, an LPR still would be prosecuted for the actual crime he committed; however, temporary deportation immunity would allow for a preconviction, nondeportation agreement that prevents an LPR who is a minor participant in a crime from being deported for the LPR’s role in that crime. In exchange for not being deported, the LPR would be required to cooperate with law enforcement agencies by providing information about the major participants in a crime.
Part I of this Note illustrates why LPRs who are minor participants in a crime may not want to cooperate with law enforcement agencies. Part II discusses the criteria within which an incentive for cooperation should operate. Part III demonstrates that existing incentives for cooperation either do not adhere to such criteria or are ineffective incentives for cooperation. Finally, Part IV proposes that section 0.197 be repealed and that prosecutors use temporary deportation immunity as an incentive for cooperation by LPRs who are minor participants in a crime.
