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pressure to accept the government’s offer of a plea agreement and waive important rights.
Defendants who are offered “flip-flop” agreements in which they are charged with both
illegal entry and illegal reentry, but plead guilty to illegal entry, have about two weeks to
decide. Defendants charged with illegal reentry, under a national Fast-Track policy
implemented by the Department of Justice in January 2012, have anywhere from 3 to 8
weeks to decide, depending on the district. 223 One assistant federal defender called these
Fast-Track agreements a “quiet hammer” in the hands of prosecutors. 224
In some districts, these plea agreements require defendants to waive “all challenges,
constitutional or otherwise, to reinstatement of defendant’s prior deportation/removal
order.” 225 In Phoenix, as noted above, the plea agreement requires the defendant to
“admit[] that he does not have a fear of returning to the country designated in the previous
order.” 226 Human Rights Watch found that criminal defense attorneys regularly see cases in
which the defendant was wrongly denied relief from removal. Sometimes, with the help of
immigration attorneys, they have even been able to prove lawful permanent residents were
wrongfully deported and have their permanent resident status restored. 227
Several attorneys described cases in which their clients had turned out to be US citizens
under complex laws governing acquired and derivative citizenship, but in some cases
they had been removed repeatedly before they ever found an attorney who investigated
that possibility. Sara Peloquin, a federal public defender in San Diego, recounted having
represented several clients who turned out to be US citizens. In one case, her client had
served 41 months on a prior illegal reentry conviction before he reentered, was charged,
and was assigned to her. She emphasized that many attorneys, judges, and immigration
223 Human Rights Watch interview with Davina Chen, assistant federal defender, Los Angeles, California, September 6, 2012
(citing 4 weeks); interview with Susan Anderson and Milagros Cisneros, assistant federal defenders, Phoenix, Arizona,
February 15, 2013 (citing 3 weeks); and telephone interview with Sara Peloquin, assistant federal defender, San Diego,
California, April 26, 2013 (citing 6-8 weeks).
224 Human Rights Watch interview with Davina Chen, September 6, 2012.
225 Sample plea agreement provided by Kari Converse, assistant federal defender in Albuquerque, New Mexico, to Human
Rights Watch.
226 Sample plea agreement provided by Milagros Cisneros, assistant federal defender in Phoenix, Arizona, to Human Rights Watch.
227 Gabriel Reyes, Sarah Rose Weinman, and Kim Ybarra, “These Lives Matter: Collaboration and Success in a Joint Federal
Defender-Immigration Case,” post to Immigrant Justice (blog), National Immigrant Justice Center, August 24, 2012,
http://immigrantjustice.org/staff/blog/these-lives-matter-collaboration-and-success-joint-federal-defender-immigrationcase#.UXr3dKLqmSp
(accessed April 26, 2013); Human Rights Watch interview with Brandon LeBlanc, assistant federal
defender, San Diego, California, September 5, 2012.
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