Abstract

Excerpted From: Allison McCarthy, Rule 11’s Unfulfilled Promise to Protect Noncitizen Defendants, 90 Missouri Law Review 1169 (Fall 2025) (257 Footnotes) (Full Document).

While President Trump’s mass deportation policies may seem unprecedented, the use of the federal criminal legal system as a mechanism for immigration enforcement is not. The federal criminal legal system has long served as a deportation pipeline. In this system, noncitizen defendants have historically been convicted at disproportionate rates. In his 1995 State of the Union Address, former President Clinton infamously stated, “We are a nation of immigrants. But we are also a nation of laws.” That year, 24.3% of all persons sentenced for federal criminal convictions were noncitizens, despite comprising less than 10% of the country’s total population.

Over the past thirty years, the degree to which the federal criminal legal system is used as a tool of immigration enforcement has grown significantly. During fiscal year 2024, the percentage of all persons sentenced for federal crimes who were noncitizens grew to 34.7%, while noncitizens still accounted for less than approximately 10% of the total population of the United States. Immigration-related crimes also accounted for the largest portion of the total federal criminal caseload.6Policy changes from early 2025 directing the United States Department of Justice to prioritize immigration-related crimes will undoubtedly drive this trend to a greater extreme.

While this data showing the prioritization of noncitizen prosecutions emphasizes the aggressiveness of federal policymakers’ choices, more troubling evidence suggests noncitizens also face unequal treatment within the federal legal system. In fiscal year 2024, noncitizen defendants were more likely than citizens to receive prison sentences, and in the past decade noncitizens’ prison sentences were on average longer than those received by similarly situated defendants who are United States citizens. Even worse, it has become increasingly recognized that two of the most prosecuted immigration-related crimes, improper entry and reentry of removed aliens, have blatantly racist origins.

Exacerbating this concerning data, the federal criminal legal system today is “for the most part a system of pleas.” Almost all convictions of noncitizen defendants result from guilty pleas, following their decision to waive the right to a jury trial among other paramount constitutional protections. The Supreme Court has interpreted the Due Process Clause of the Fifth Amendment to require that guilty pleas be made “voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences.”’ Courts have long recognized that this “voluntary and knowing” requirement protects all defendants regardless of immigration status, and further implicates the interrelated right to effective assistance of counsel of the Sixth Amendment, as well as other overlapping statutory and administrative protections. Included therein is Federal Rule of Criminal Procedure 11, which, since 1966, has required the court to “address the defendant personally in open court and determine that the plea is voluntary.”

For noncitizen defendants, the decision to plead guilty can be even more fraught and complicated than for their citizen counterparts. When contemplating a guilty plea, few criminal defendants weighing the near certainty of conviction at trial against the benefit of a possible reduction of sentence as part of a plea offer would find going to trial to be an attractive option. Noncitizen defendants convicted of crimes, however, must also consider the virtual inevitability of banishment from the United States, including possibly permanent separation from their families or the risk of persecution and torture upon return to their home country. For many noncitizens, deportation is, as the Supreme Court has recognized, “an integral part--indeed, sometimes the most important part--of the penalty that may be imposed.” Given the severity and permanence of those consequences, for some noncitizen defendants “even the smallest chance of success at trial may look attractive.”

In the past several decades, changes in United States immigration law and policy have resulted in more frequent and generally automatic deportations of noncitizens convicted of federal crimes. Courts have therefore faced repeated questions about whether a noncitizen defendant’s guilty plea can be knowing and voluntary if they are not first advised about the resulting immigration consequences. Historically, courts accepted that a defendant must understand certain consequences of a criminal conviction before entering a guilty plea, such as any mandatory minimum prison sentence or fine. Courts saw immigration consequences differently, however. With subtle differences in reasoning, courts almost universally concluded such consequences were collateral to criminal convictions and therefore fell outside the scope of noncitizen defendants’ due process rights, as well as their rights to the effective assistance of counsel.

Then in 2010, the United States Supreme Court held in Padilla v. Kentucky that for noncitizen defendants making the vitally important decision to plead guilty, “the effective assistance of competent counsel” included advice about “whether [their] plea carries a risk of deportation.” In Padilla, the Court refused to characterize deportation as either a direct or collateral consequence of a criminal conviction because of its unique nature, being so severe and so closely related to the criminal process.24Padilla addressed only the issue of effective assistance of counsel for noncitizen defendants. In the years following that decision, however, many advocated for a similar departure from the direct and collateral consequences distinction in the context of due process claims as well. Litigants argued the Supreme Court’s logic in Padilla created a similar duty for courts to ensure noncitizen defendants did not plead guilty ignorant of the resulting immigration consequences.

The Padilla decision prompted the Judicial Conference Advisory Committee on the Rules of Criminal Procedure (“Advisory Committee”) to propose amending Rule 11, which requires courts to advise defendants of certain rights and consequences, including the defendant’s right to a trial and the maximum possible penalty for their crime, prior to accepting a guilty plea. Effective December 1, 2013, Rule 11(b)(1)(O) added the required advisement that “if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” Prior to its adoption, stakeholders argued broadening Rule 11 to require an advisement about what had been traditionally considered a collateral consequence would “turn a plea colloquy into a minefield for a judge.” On the other hand, some expressed concern that the amendment did not do enough to promote fairness for noncitizen defendants and even risked undermining noncitizen defendants’ constitutional rights. Ultimately, however, the Advisory Committee determined that “a general statement of possible immigration consequences in every case” was “good policy,” even if not required by Padilla.

It has now been over a decade since the Advisory Committee implemented the amendment to Rule 11, and this Article is the first to consider whether time has validated or dispelled the original misgivings about the Rule. Unfortunately, Rule 11(b)(1)(O)’s promise to better protect the rights of noncitizen defendants has been unfulfilled. Instead, several trends in Rule 11(b)(1)(O)’s application have emerged that reveal the Rule undermines the rights of noncitizen defendants in many cases. Among other issues, the language of Rule 11(b)(1)(O) is imprecise and misleading to noncitizen defendants who mistakenly rely upon the general warning as advice. Courts also rely upon Rule 11(b)(1)(O) to deny claims of ineffective assistance of counsel, finding the warning remedies any failure by counsel or renders any error harmless. Despite the Advisory Committee’s Note to Rule 11(b)(1)(O) requiring the warning be given in every case regardless the citizenship status of the defendant, many judges continue to ask defendants on the record about their immigration status, infringing defendants’ Fifth Amendment privilege against self-incrimination. Additionally, even if courts do find a violation of Rule 11(b)(1)(O) occurred, noncitizen defendants are often unable to obtain relief for a violation of Rule 11(b)(1)(O) under the harmless-error analysis employed in appellate review of Rule 11 violations.

Given the growing use of the federal criminal legal system as a mechanism of immigration enforcement, and the increasing severity of immigration consequences to noncitizen defendants today, it is time to reimagine Federal Rule of Criminal Procedure 11(b)(1)(O). This Article suggests several practical amendments to the text of Rule 11(b)(1)(O) that would better safeguard the rights of noncitizen defendants and promote fairness in the federal criminal legal system. Additionally, this Article suggests a doctrinal shift may be necessary to truly protect the rights of noncitizen defendants and ensure just outcomes of federal criminal proceedings. Courts must recognize that a noncitizen’s understanding of the immigration consequences of a guilty plea is a fundamental due process issue rather than a merely helpful procedural requirement. This recognition is critical to ensure noncitizen defendants make knowing and voluntary guilty pleas and can obtain relief in the event they do not.

This Article proceeds in four parts. Part I reviews the historical treatment of Fifth and Sixth Amendment protections for noncitizen defendants, including those doctrines as they existed prior to Padilla, the treatment of these issues in the Padilla decision itself, and the major legal developments in these doctrines since that decision was issued. Part II discusses the history and adoption of Federal Rule of Criminal Procedure 11(b)(1)(O), including the Advisory Committee’s goals for the Rule as well as early criticisms and concerns related to the Rule. Part III identifies problematic trends in cases involving violations of Rule 11(b)(1)(O) and argues that courts too frequently undermine the knowing and voluntary nature of noncitizen defendants’ guilty pleas and other important rights. Finally, Part IV advocates for several changes to Rule 11(b)(1)(O) and the legal doctrine surrounding knowing and voluntary guilty pleas that would result in fairer and more just criminal proceedings for noncitizen defendants.

[ . . . ]

The federal-criminal-legal-system-to-deportation pipeline necessitates improving protections of the rights of noncitizen criminal defendants. The Due Process Clause requires that all defendants, regardless of immigration status, plead guilty with full knowledge and understanding of the attendant consequences. Padilla was an important first step toward ensuring noncitizen defendants possess this knowledge. Federal Rule of Criminal Procedure 11(b)(1)(O) then promised an additional layer of protection. However, this promise was unfulfilled, and the Rule has instead undermined the rights of noncitizen defendants. With the benefit of over a decade of hindsight, we must now amend Rule of Criminal Procedure 11(b)(1)(O) so it can more effectively protect the rights of noncitizen defendants. Courts must also recognize that understanding immigration consequences of a guilty plea is a fundamental due process issue rather than a merely helpful procedural requirement to ensure more just outcomes for noncitizen defendants in the federal criminal legal system.

Director of Drake Refugee Clinic and Instructor of Law, Drake University Law School.