Democratic Congressional Candidate Robert Turkavage offers “Deferred Prosecution Agreements” and “Cooperation Agreements” as Possible Solutions to Undocumented Immigrant and Associated Crime Problems in the United States.

Today, Democratic Congressional Candidate Robert Turkavage offers a framework, whereby certain undocumented immigrants (hereafter, UIs) currently living in the United States, can eventually obtain legal permanent residency by entering into, and abiding by, a Deferred Prosecution Agreement (DPA) with the government. Further, under certain circumstances, an individual granted a DPA can obtain a reduction or elimination of the penalties and other conditions imposed by the DPA, if the UI enters into, and abides by, a separate Cooperation Agreement (hereafter, “CA”) with the government.

According to published reports, there are between 10.5-12 million UIs living in the United States. Reporting indicates that approximately 67% of the undocumented population has been in the US in excess of 10 years. Approximately 300,000 or 2.7% of UIs have been convicted of felony violations, whereas approximately 6% of the US population has been convicted of a felony.  While most UIs pay some form of taxes (i.e., state sales taxes), it is believed that a portion of the UI population does not file and pay federal or state income taxes.

THE DPA

DPAs arose out of Subsection (h) (2) of the Speedy Trial Act of 1974. Subsection (h)(2) allows for a prosecution to be deferred if there is a written agreement for such a deferral that is signed by the defendant, the government, and approved by the courts, for the purpose of allowing the defendant to demonstrate his good conduct. Under the DPA, the individual agrees to a fine and other punitive measures, (i.e., perform community service), and to cooperate with the government over a stipulated period of time. If the defendant complies with the provisions of the DPA, prosecution is dismissed. Although initially employed in cases involving individuals, the DPA has most often been used in cases involving corporate wrongdoing.

As envisioned by Turkavage, a UI would be able to apply for a DPA either for himself, his family or both. Regardless of the type of application, all persons to be covered by the program must have been physically living in the United States as of January 1, 2020. Egregious criminal activity such as the following would render a UI ineligible for a DPA: Murder, Rape, Armed Robbery, Felony Assault, Drug Trafficking, Firearms Trafficking, Alien Smuggling, Child Exploitation, Child Pornography, Human Trafficking, and Terrorism matters.

On the individual or family DPA application, the initial unauthorized entry date for each covered person would be listed. Any “additional criminal activity” (i.e., use of fraudulent Social Security Number) by any individual covered by the agreement would also be listed. By submitting the application, the UI agrees to the following:

• A fine ($2,500 suggested) for each unauthorized entry by each UI adult applicant;
• A fine ($2,500 suggested) on each adult UI who performed “additional criminal activity”.
• Agree to perform community service (hours determined by length of time in US)
• File federal and state income taxes in all subsequent years.
• A probationary period (three years suggested) during which compliance by the UIs will be monitored.
• Noncompliance will result in revocation of DPA and subject all covered persons to criminal charges and deportation.
• Payment of fines and performance of community service must be fulfilled during probationary period.
• Subject to the approval of a US Magistrate Judge, residency status will be granted upon completion of probationary period.

Utilizing DPAs to redress the UI problem is in the best interests of both the US Government and the UI. DPAs hold the UI accountable for their criminal conduct; the cost to the government of investigating, prosecuting (trials and appeals), and deporting are avoided, and the US government receives payment and restitution for services used by the UIs. The UIs receive permanent legal status.

THE CA

CAs are frequently used by prosecutors at all levels of government to assist in investigation and prosecution of cases. Generally, a CA is a written document signed by an individual and the government in which the individual agrees to provide information and assistance to the government concerning a matter under investigation, as well as information regarding other criminal activity. If the cooperating individual is to be charged with criminal activity, and the individual abides by the terms of the CA, the prosecution, as per the terms of the CA, will make known the individual’s cooperation with the government at the time the individual is sentenced by the court for his/her crime.

President Donald J. Trump has suggested, and a share of the American populace agree, that a certain portion of the UI population has either participated in, or has knowledge of the types of egregious criminal activity mentioned above. In situations where a UI who has received a DPA (hereafter, DPA grantee) has knowledge of egregious criminal activity, it would behoove the DPA grantee to enter into a CA with the government. As set out below, such an agreement could provide substantial benefits to both the US Government and the DPA grantee.

As envisioned, a DPA grantee having knowledge of one of the types of egregious criminal activity mentioned (i.e., human trafficking) would sign a written cooperation agreement with the government.

The DPA grantee would agree to provide full details of his knowledge of the criminal activity, and would also agree to provide proactive assistance to the government in its investigation, including trial testimony, if required.  Using the information and assistance provided, the government would investigate and where appropriate, prosecute the individuals implicated by the DPA grantee.  At the conclusion of the DPA grantee’s cooperation, the government would make known to an appropriate reviewing government official, the nature, extent, and results of the cooperation provided by the DPA grantee. Upon evaluation of the information provided by the government, that official could recommend lessening or eliminating the previously imposed penalties or other provisions of the DPA. Final decision on the recommendation would rest with a Magistrate Judge.

Using CAs with DPA grantees is in the best interests of both the United States and the DPA grantee.

By entering into CAs with DPA grantees, the government may become privy to egregious criminal conduct which may have otherwise gone undetected and prevented. Proactive assistance by DPA grantees will also substantially reduce the time and costs to the government associated with investigating and prosecuting the criminal activity. In return for his/her assistance, the DPA grantee may be eligible for a reduction/elimination of the penalties and other provisions of the DPA.