PROTECTING GOOD-FAITH COOPERATION AND INFORMATION: DEFERRAL OF REMOVAL PROCEEDINGS FOR SYMPATHETIC SNITCHES

The criminal and immigration systems in the United States have increasingly overlapped, adversely affecting noncitizens even distantly involved in criminal activity. Individuals without legal status who have engaged significantly with a criminal organization can cooperate with law enforcement in exchange for formal immigration benefits. There are no formal protections, however, for individuals residing in the country without legal status who have engaged in minor criminal activity—so minor that charges are not brought against them—even when they cooperate with law enforcement to provide information on the larger criminal scheme. This seemingly contravenes the goals of criminal and immigration law by failing to protect vulnerable accomplices who have not been charged with wrongdoing.

This Note proposes shielding such susceptible populations by expanding immigration protections. In the criminal sphere, charged individuals who lack the ability to render the substantial assistance needed for formal cooperation can still be eligible for a “safety valve” if, in good faith, they provide details on the activities that they partook in. Recipients of safety-valve protections receive sentences below the defined statutory minimums for the crimes they have committed. They do not obtain as much of a reduction in sentencing as formal cooperators or informants do but still benefit from engaging honestly with law enforcement. This Note proposes mirroring such a protection—a lesser version of the S visa modeled after the safety valve—into the immigration context.

The full text of this Note can be found by clicking the PDF link to the left.

*J.D. Candidate 2025, Columbia Law School. Thank you to Professor Daniel Richman for his invaluable guidance throughout the Note-writing process. Thank you also to Professor Elora Mukherjee, Professor Anjum Gupta, and Jey Hernandez for their insightful commentary on the piece. This Note is dedicated to Dr. Arti Kapoor Gupta—a staunch advocate, ambitious leader, and extraordinary mother. May her legacy continue to inspire us all.

Introduction

Envision a thirty-year-old man who works part time for a shipping company and has been residing in the United States without legal status since 2022. 1 This hypothetical is based on an existing case, though certain facts have been changed to preserve anonymity. Now imagine that his boss, knowing that this noncitizen would not risk the potential immigration ramifications of interacting with law enforcement, involves him in a spinoff of the legitimate shipping business: narcotics transport and trafficking. All he does is unpack and repack these shipments to send to their next destination, but he does so knowingly, and this minor action inculpates him in the trade. The DHS, which has increasingly focused efforts on preventing illicit drug trade, 2 For more information on DHS’s efforts to target narcotics trade, see Press Release, DHS, DHS Doubles Down CBP Efforts to Continue to Combat Fentanyl and Synthetic Drugs (Oct. 26, 2023), https://www.dhs.gov/news/2023/10/26/dhs-doubles-down-cbp-efforts-continue-combat-fentanyl-and-synthetic-drugs [https://perma.cc/7BM8-MQ5D] (detailing DHS’s updated strategy to disrupt the supply chain of drugs from other countries into the United States). traces a shipment back to him. Brought in for questioning, he immediately shares whatever information he has on his boss’s business, but his knowledge is limited. The U.S. Attorney’s Office, recognizing his complicated situation and minor involvement in the crime during a criminal proffer, decides not to bring charges. 3 Federal prosecutors have discretion over whether to bring criminal charges against individuals involved in a crime. Factors for declining to prosecute an individual include minor culpability in connection with the offense and personal circumstances that affect the accused. DOJ, Just. Manual § 9-27.230 (2023). In Fiscal Year 2022, U.S. Attorneys’ Offices declined to prosecute 24,345 cases presented to them, including 3,197 cases referred by DHS. See DOJ, United States Attorneys’ Annual Statistical Report Fiscal Year 2022 61 tbl.15 (2022), https://www.justice.gov/usao/file/1574596/dl?inline [https://perma.cc/8UEQ-2WVT] (listing the number of Customs & Border Protection, ICE, USCIS, Secret Service, and all other DHS cases that the DOJ declined to prosecute in Fiscal Year 2022, adding up to 3,197 cases referred by DHS that the DOJ declined to prosecute). Studies suggest that prosecutorial discretion plays a key role in the future of those involved in crime: Choosing not to prosecute minor players in a criminal activity statistically decreases their likelihood of recidivism and improves their economic outcomes. See, e.g., Michael Mueller-Smith & Kevin T. Schnepel, Diversion in the Criminal Justice System, 88 Rev. Econ. Stud. 883, 885 (2021) (finding that felony diversion, which pauses or terminates a felony case, has resulted in “[t]he probability of any future conviction declin[ing] by approximately 45% and the total number of future convictions fall[ing] by 75%” along with “quarterly employment rates improv[ing] by 49%”). Interaction with federal law enforcement, however, does not end there. Now that DHS has records indicating he is someone who entered the country without legal paperwork, he is at risk of immigration action.

The growing overlap between criminal and immigration law, coined “crimmigration,” 4 The term “crimmigration” was first used by Professor Juliet Stumpf. See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 376 (2006). has significant effects on noncitizens in the United States. Immigration law has evolved from merely refusing entry to individuals with preexisting criminal histories to increasingly deporting people who have committed crimes or are “deemed likely to commit” certain crimes. 5 Id. at 381–84.

Currently, individuals residing in the country without legal status who have engaged in criminal activity are eligible to receive immigration protections through S nonimmigrant visas if they sign on to work with government agencies as formal cooperators or informants. 6 In fact, the S visa can even be used to provide immigration benefits to foreign nationals living abroad who are extradited to the United States for criminal trial and who enter into cooperation agreements. See Laura A. Gavilán, A Criminal’s Path to the American Dream: Extradition as a Drug Enforcement Policy Tool, 28 Geo. Immigr. L.J. 597, 612–13 (2014) (arguing that the extradition of Colombian drug traffickers creates a potential immigration pathway enabling them to seek permanent residency in the United States). Those protections will not, however, apply in a situation like the hypothetical above. There is no formal immigration protection available for an individual who played such a minor role in a larger criminal scheme. Even if they fully cooperate in a criminal proffer, a law enforcement agency may not value their aid to the same extent as that of a formal cooperator or informant. This structure seemingly contravenes the goals of criminal and immigration law by failing to protect vulnerable accomplices who have not been charged with wrongdoing. 7 See Rachel Frankel, Note, Sharks and Minnows: Using Temporary Alien Deportation Immunity to Catch the Big Fish, 77 Geo. Wash. L. Rev. 431, 436–38 (2009) (highlighting that criminal law seeks a combination of retribution, deterrence, incapacitation, and retribution, while immigration law seeks to enforce immigration priorities to achieve justice). Frankel’s innovative argument focuses on legal permanent residents who have officially been charged with crimes and now seek cooperation status—a very different subset of the population than that discussed in this Note because of both the immigration status of the noncitizen and their level of criminal involvement. Despite these differences, the general goals of law hold true in both situations. See also 18 U.S.C. § 3553(a)(2) (2018) (listing out the factors to consider upon imposing a criminal sentence).

Compared to the typical cooperator who “forces the government to ‘buy’ information that the ‘concerned citizen’ would have freely given,” 8 Daniel C. Richman, Cooperating Clients, 56 Ohio St. L.J. 69, 83 (1995). noncitizens without legal status may not feel comfortable freely interacting with law enforcement. Their willingness to work openly and truthfully with criminal agencies once discovered thus indicates “a genuine desire to make amends for wrongdoing.” 9 See Michael A. Simons, Retribution for Rats: Cooperation, Punishment, and Atonement, 56 Vand. L. Rev. 1, 4 (2003) (“[F]or some cooperators, cooperation can be a vehicle through which the defendant experiences atonement. . . . [T]here is an occasional defendant for whom the decision to cooperate is motivated by a genuine desire to make amends for wrongdoing.”). This is especially the case for the class of individuals addressed by this Note, who were so minorly involved in criminal activity that charges were not brought against them.

This group falls into a quite unfortunate trap—they were not involved enough in criminal activity to gain formal immigration benefits, yet their contact with criminal authorities is likely the reason they are considered priority status for immigration action. Having become subject to government attention, they face a dire need for immigration protection. Whatever prejudice stems from their interaction with the criminal system should thus be expunged by their cooperation.

This Note proposes shielding such susceptible populations by expanding immigration protections. In the criminal sphere, charged individuals who lack the ability to render the substantial assistance needed for formal cooperation can still be eligible for a “safety valve” if, in good faith, they provide details on the activities that they partook in. Recipients of safety-valve protections receive sentences below the defined statutory minimums for the crimes they have committed. The information they provide need not be unknown to the government nor particularly relevant or useful in future trials of higher-ups. 10 See 18 U.S.C. § 3553(f)(5) (“[T]he fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.”). So long as the defendant did not serve as an organizer or leader in the conduct at hand and has provided all the information that they have related to said conduct, they may qualify for safety-valve provisions.

11 Id. § 3553(f)(4)–(5). Other requirements of the safety valve include that:
(1) The defendant does not have—
(A) more than 4 criminal history points, excluding any points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines.
(2) The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) The offense did not result in death or serious bodily injury to any person.
Id. § 3553(f)(1)–(3). Recipients do not obtain as much of a reduction in sentencing as cooperators or informants do, but they still benefit from engaging honestly with law enforcement. 12 Id. § 3553(f). This Note proposes mirroring such a protection—a lesser version of the S visa modeled after the safety valve—in the immigration context.

The Note proceeds in three Parts. Part I details existing avenues for working with the government to gain nonimmigrant status, which provides temporary legal residence in the United States. 13 For a full list of available nonimmigrant statuses, see Nonimmigrant Classes of Admission, Off. of Homeland Sec. Stat., DHS, https://www.dhs.gov/ohss/topics/‌immigration/nonimmigrants/classes-of-admission [https://perma.cc/3QKW-Z2L5] (last visited Aug. 1, 2024). Some of these opportunities have the potential to lead to permanent residency while others do not, depending on the level of assistance an individual provides to government officials. It then lays out current guidelines and immigration priorities for DHS officials. This Part explains why none of the existing immigration protections adequately cover the group addressed in this Note.

Part II focuses on individuals overlooked by the existing system. It highlights the high bar to serving as a cooperator or informant and the many critiques of these roles. As an alternative, this Part explores the requirements and benefits of the criminal safety valve and good-faith cooperation. It then elucidates why the S visa, as it is currently set up, cannot be expanded to include individuals who meet the truthful information-sharing requirements of the criminal safety valve and good-faith cooperation.

Finally, Part III proposes a feasible protection for such individuals based on existing movements in immigration law. Specifically, it advocates for broadened protections coupled with a deferred removal program that does not waive the right to judicial resort. While deferred removal is not the ideal proposal to support migrants, this Part clarifies why such a program is the most feasible option in the current immigration climate. It then highlights systematic issues to address for effective implementation of the proposal.