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Stipulated Judicial Order of Removal: Frequently Asked Questions:

1) How will I know if an alien defendant is a candidate for a stipulated judicial order of removal? 2) What is the process to obtain a stipulated judicial order of removal?
3) When can the alien defendant obtain a stipulated judicial order of removal?
4) Can an alien appeal the stipulated judicial order of removal?
5) If the United States District Court judge or magistrate refuses to accept the plea agreement or issue the stipulated judicial order of removal, can an alien defendant still be removed?
6) Does an alien need to be in the custody of a law enforcement agency to receive a stipulated judicial order of removal?
7) Are there any legal bars that might make the alien ineligible for a stipulated judicial order of removal?

Q:        How will I know if an alien defendant is a candidate for a stipulated judicial order of removal?

A:        Aliens who
        a) are removable under the INA and
        b) are defendants
                i) in federal criminal cases

1) may be eligible for judicial removal. See INA �� 238(c).

However,

it is important to note
        a) that judicial removal may not be the most appropriate removal proceeding
                i) for all federal alien defendants.

Federal prosecutors
        a) who are interested in pursuing a removal order
                i) against an alien defendant

1) should contact their local Office of Chief Counsel
        a) to determine
                i) if a judicial removal order is the appropriate avenue
                        (a) to effectuate the defendant��s removal from the United States.

Q:        What is the process to obtain a stipulated judicial order of removal?

A:        Federal prosecutors are authorized
        a) to enter into plea agreements
                i) with federal defendants.
See Fed. R. Crim. P. 12.

Additionally,

INA �� 238(c)(5) sets forth the process
        a) regarding stipulated judicial orders of removal,
                i) whereby an alien can enter into a plea agreement
                        (a) subject to DHS concurrence.

Under such plea agreements,

the alien stipulates
        a) to being removed from the United States
                i) as part of his/her criminal sentence.

The statute further sets forth that
        a) as part of the plea agreement,
        b) the alien
                i) waives a formal immigration hearing and
                ii) waives the right to appeal
                        (a) from the order of removal.

Please note, :

both
        a) a U.S. District Court judge
                i) (in felony and misdemeanor cases) and
        b) a U.S. magistrate judge
                i) (in misdemeanor cases only)

1) may accept such stipulation and
2) enter a judicial order of removal.

A federal prosecutor
        a) who desires to seek such an order

1) should contact the local Office
        a) of Chief Counsel
        b) in order to determine
                i) if the alien defendant is removable and
                ii) whether a judicial order of removal is the most appropriate removal proceeding.

Q:        When can the alien defendant obtain a stipulated judicial order of removal?

A:        Generally,

        a) a U.S. District Court judge or
        b) a U.S. magistrate judge

1) will enter the judicial removal order
        a) at the time of sentencing.

Q:        Can an alien appeal the stipulated judicial order of removal?

A:        No.

INA �� 238 (c)(5) requires that
        a) the alien explicitly waive the right
                i) to appeal from such orders.

Q:        If the U. S. District Court judge or magistrate refuses to accept the plea agreement or issue the stipulated judicial order of removal, can an alien defendant still be removed?

A:        Yes.

The denial         
        a) of a judicial removal order

1) does not preclude ICE
        a) from initiating removal proceedings
                i) against an alien
                ii) under INA �� 240, 8 U.S.C. �� 1229a,
                iii) based on any charge of removability.

Q:        Does an alien need to be in the custody of a law enforcement agency in order to receive a stipulated judicial order of removal?

A:        No.

However,

if it is believed
        a) that a stipulated judicial removal order will be entered
                i) at the time of sentencing,

1) ICE should be notified
        a) to ensure
                i) required steps are taken to coordinate removal efforts where appropriate.

Q:        Are there any legal bars that might make the alien ineligible for a stipulated judicial order of removal?

A:        Not all aliens are removable
        a) under the INA;

1) therefore,
        a) the alien may be ineligible
                i) for a stipulated judicial removal order.

Also,

pursuant to the Immigration and Nationality Act,

there are various classes of aliens
        a) who may be removed from the United States
                i) without a hearing
        b) (e.g.,
                i) previously removed aliens
                        (a) who are currently unlawfully present in the United States,
                ii) alien stowaways,
                iii) alien crew members,
                iv) visa waiver entrants).

For these aliens,

a judicial order of removal is unnecessary.

Therefore,

a federal prosecutor
        a) interested in seeking a judicial removal order

1) should consult with his/her local ICE Office of Chief Counsel
        a) to determine the appropriate removal process.

Contact information:
ICE Field Offices: http://www.ice.gov/contact/ero/
ICE Special Agent in Charge Offices: http://www.ice.gov/contact/inv/ ICE Offices of Chief Counsel: http://www.ice.gov/contact/opla/

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