Faculty Profile: Susan R Klein
Main Profile Content
Featured Work
Immigration Defense Waivers in Federal Criminal Plea Agreements
69 Mercer Law Review 839
Immigration policy is back on the American public’s radar screen. The fields of immigration — a civil-law subject — and criminal law — a public- law subject — are quite distinct in both litigation practice and law school curricula. The distinction is becoming increasingly problematic as the subjects continue to intertwine in very practical ways: federal criminal prosecution is now routinely used as part of border enforcement strategy, and interior immigration enforcement is done largely in cooperation with state and local policing. The Department of Justice (DOJ), under a new administration whose goal is to expand and accelerate removal of non- citizens, is taking advantage of this historical division. Intending to have its cake and eat it too, the Trump administration wants to retain the civil aspects of immigration law that most benefit the government (primarily that a non-citizen has no Sixth Amendment right to an attorney at the government’s expense in deportation proceedings), while retaining the aspects of criminal law where the government holds all the cards (namely the coercive aspect of plea bargains that can include waivers of most of the defendant’s substantive and procedural rights). By combining the greatest pro-government interests of both fields, prosecutors are best positioned to reach the current administration’s goal to deport as many immigrants as possible. Although the Authors do not comment on the propriety of this goal, we do take issue with the government’s illegitimate means of achieving it by including waivers of immigration relief and challenges to deportability in criminal plea agreements. This Article focuses on DOJ’s inclusion of waivers of immigration relief in plea agreements for non-citizen federal defendants and proposes some challenges to these waivers. Federal district and appellate judges, immigration judges (IJs), and the Board of Immigration Appeals (BIA) members will find below legal grounds to decline to accept these waivers. Such tools are critical to combat this new federal immigration waiver propensity — which is especially disturbing in light of Attorney General Sessions’ April 11, 2017 Memorandum requiring federal prosecutors to substantially broaden immigration prosecutions, and limiting discretion on whom not to deport. The government seeks waivers of critical rights without giving non-citizen defendants access to the tools and knowledge to make fully informed decisions.In Part I, we review the language of immigration waivers, which widely varies by jurisdiction, and include an appended chart tracking waivers from each U.S. Attorney’s Office that presently requests waivers as part of their standard plea agreements. In Part II, we briefly describe how removal orders are imposed by immigration judges, Department of Homeland Security (DHS) officers, and by federal district court judges, and discuss the effect these waivers will have in those proceedings. The Authors also include a discussion of the potential grounds of relief from removal, such as asylum, withholding of removal, and protection under the Convention Against Torture in conjunction with challenging the grounds for the deportation. Finally, we spend some time on the renewed use of a 1994 judicial removal statute, 8 U.S.C. § 1228.In Part III, we identify five methods for challenging these waivers. We first urge immigrants to demand hearings and to challenge the factual statements contained in the plea waivers. Next, we question the constitutionality of the judicial removal statute. Moving on, we suggest that defense attorneys who advise clients to sign these waivers may be providing ineffective assistance of counsel. Additionally, we note that ethics rules regarding competency prohibit most criminal defense attorneys from advising their clients regarding what immigration rights they are ceding, and similarly, prohibit prosecutors from seeking such waivers. Finally, we argue that public policy and international law obligations may prohibit enforcement of these waivers.
Biography
Susan Riva Klein is the Alice McKean Young Regents Chair in Law at the University of Texas School of Law. Upon graduation from Boalt Hall School of Law second in her class, she clerked for Judge Cynthia H. Hall on the Ninth Circuit U.S. Court of Appeals and spent four years as a federal criminal prosecutor with the U.S. Dept. of Justice through the Attorney General's Honor Program. While in the Criminal Division, she rotated through the Money Laundering and Asset Forfeiture section, the Public Integrity Unit, Terrorism & Violent Crimes, and the U.S. Attorney's Office for the District of Columbia. She is now a nationally prominent scholar in the fields of criminal procedure, federal criminal law, sentencing, and prosecutorial ethics. Her many articles have appeared in top ten law journals and have been cited by the SCOTUS. She is co-author of Abrams, Beale, & Klein, "Federal Criminal Law and Its Enforcement (7th ed., West 2020), a widely adopted casebook at many law schools. Professor Klein is active in educating state and federal judges, prosecutors, and the defense bar. She is the Chief Reporter for the Committee to Redraft the Fifth Circuit Pattern Jury Instructions, Criminal (West 1997, 2001, 2012, 2015, 2019), and also currently serves on the State Bar of Texas standing committee on Pattern Jury Charges - Criminal (10 volumes published by the State Bar of Texas between 2009 and 2021). Professor Klein has consulted on numerous high-profile criminal cases.
Courses for Spring 2023
- Federal Criminal Law
- Internship: Federal Public Defender
- Internship: U.S. Attorney
- SMNR: Supreme Court Docket: Criminal Law & Procedure Cases
Professional Activities
2019
February 8, 2019
Moderator on Panel III: "Prosecutorial Independence," Reclaiming and Restoring Constitutional Norms, sponsored by the Texas Law Review and The American Constitutional Society
2018
August 5, 2018
Participant in "Policing in a Democracy Without Privacy," Southeastern Association of Law Schools Annual Conference
SEALS Conference 2018 Ft. Lauderdale, FL
2017
October 16, 2017
Debate: Federal Criminal Justice Reform
with Clark Neily, Cato Institute and UT adjunct, sponsored by the Federalist Society
October 6, 2017
Immigration Defense Waivers in Federal Criminal Plea Agreements
Mercer University School of Law
With Donna Lee Elm & Elissa C. Steglich
August 2, 2017
Workshop for New Law School Teachers
Seals 2017 Conference
At SEALS 2017 Conference
July 31, 2017
Southeastern Association of Law Schools 2017 Conference
SEALS Conference 2017
Presenting "Disruptive Innovations in Criminal Defense"
February 21, 2017
Sanctuary Cities panel, moderator
UT Law
Moderated panel discussion with Austin ICE Directors and UT immigration clinic, sponsored by AJCL
2015
September 13, 2015
National Public Defenders Retreat, New Orleans, LA
Can We Reform Plea Bargaining?
Plea Bargaining Conference at the University of Minnesota Law School (with Kate Stith, Yale, and Gabriel Chin, Uni. of AZ).
September 12, 2015
Recap of Current Issues in the U. S. Supreme Court
National Public Defenders Retreat, New Orleans, LA
April 12, 2015
Brady and Discovery: What Works in State and Federal Jurisdictions
National Public Defenders Retreat, New Orleans, LA
Plea Bargaining Conference at the University of Minnesota Law School (with Kate Stith, Yale, and Gabriel Chin, Uni.of AZ).
2012
February 16, 2012
"Improving the Advisory Guideline System"
"Improving the Advisory Guideline System" (with Hon. Gerard Lynch, 2d Cir., Hon. Andre Davis, 4th Cir., Fed. Public Defender Henry Bemporad, Hearing before the U.S. Sentencing Commission, Washington, D.C.
2011
July 28, 2011
“Debunking Claims of Over-Federalization in Criminal Law
Southeastern Association of Law Schools conference paper presented on a panel on Overcriminalization at the Southeastern Association of Law Schools conference held in Hilton Head, South Carolina.
2007
August 31, 2007
Faculty Colloquium
University of Texas at Austin
In September she participated in a faculty colloquium on recent USSC cases, also at UT-Austin.
July 31, 2007
Panel Participant
University of Texas at Austin Law School
Participated in a panel on the first year curriculum in late August at the University of Texas at Austin Law School.
April 6, 2007
Paper Presentation
Citizen Ignorance, Police Deception, and the Constitution Sympsium
Presented a paper, "Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code," at a symposium on Citizen Ignorance, Police Deception, and the Constitution at the Texas Tech University School of Law on April 6, 2007. Her paper was published at 39 Texas Tech Law Rev. 1321 - 1354 (Summer 2007).