Silence Is Forfeiture (Not Waiver): “Cooperate With and Abide by All Instructions of Immigration Authorities” Supervised-Release Condition Upheld

I. Introduction

In United States v. Salvador (2d Cir. July 7, 2026), the Second Circuit considered whether a district court plainly erred by imposing a supervised-release special condition requiring a deportable noncitizen to “cooperate with and abide by all instructions of immigration authorities.” The defendant, Antonio Salvador (a citizen of El Salvador), pleaded guilty to assault in aid of racketeering, 18 U.S.C. § 1959(a)(3), arising from his MS-13-related role in a shooting. He received 210 months’ imprisonment and three years of supervised release, including the challenged “Immigration Authorities Condition.” He did not object in the district court.

On appeal, Salvador sought vacatur of that special condition, arguing it was: (1) procedurally unreasonable because the court did not state reasons for imposing it; (2) unconstitutionally vague and overbroad; and (3) an impermissible delegation of sentencing authority to immigration officials. The Second Circuit addressed threshold issues of appeal waiver, ripeness, and waiver versus forfeiture, then rejected the merits challenges under plain-error review and affirmed.

II. Summary of the Opinion

  • Appeal waiver: Salvador’s plea appeal waiver did not bar his challenge because it did not cover supervised-release conditions (United States v. Reyes-Arzate).
  • Ripeness: The challenge was ripe despite likely deportation because the issues were “pure question[s] of law” (drawing on United States v. Villafane-Lozada, and contrasting technology-dependent cases like United States v. Birkedahl).
  • Waiver vs. forfeiture: Salvador’s silence below was forfeiture, not waiver, because there was no affirmative signal of abandonment as required by Hunter v. United States; thus, plain-error review applied.
  • No plain error on procedure, vagueness, or delegation: The record made the rationale “self-evident,” the condition’s meaning was clear, and it did not delegate sentencing power to immigration authorities.

III. Analysis

A. Precedents Cited

1. Appeal waivers and scope

The Government sought dismissal based on an appeal waiver, but the court relied on United States v. Reyes-Arzate to hold that a waiver limited to a term of imprisonment does not necessarily foreclose challenges to supervised-release conditions. The opinion reinforces careful, text-based parsing of waiver scope rather than a broad presumption that any sentencing appeal is waived.

2. Ripeness in supervised-release condition challenges

The court treated ripeness as jurisdictional (“constitutional prerequisite”) per United States v. Traficante, and applied the familiar “fitness” and “hardship” framing described in United States v. Balon. It distinguished:

  • United States v. Birkedahl (and United States v. Balon): challenges may be unripe where the condition’s burdens depend on “rapidly evolving technologies.”
  • United States v. Villafane-Lozada: “pure question[s] of law” (including delegation claims) are typically ripe even years before supervision begins.
  • United States v. Jimenez: ripeness does not disappear merely because technology is involved if the legal issue is already crystallized.
  • United States v. Reeves and United States v. Kunz: vagueness analysis turns on the words of the condition and ordinary understanding, not future operational details.

Using these lines of authority, the court held Salvador’s vagueness and delegation claims ripe even if deportation might occur before supervised release begins.

3. Waiver vs. forfeiture; selecting the standard of review

The opinion’s most operationally significant procedural guidance is its insistence that silence is not enough to establish waiver. The court grounded this in:

  • United States v. Arguedas: absent objection, conditions are typically reviewed for plain error.
  • United States v. Napout: supplied the four-part plain-error standard quoted and applied.
  • United States v. Olano: foundational distinction—waiver is “intentional relinquishment,” forfeiture is failure to timely assert a right; only forfeiture permits plain-error review.
  • United States v. Yu-Leung: waived claims are not reviewable.
  • Hunter v. United States: requires an “affirmative signal of abandonment”; mere silence generally indicates forfeiture, not waiver.
  • United States v. Williams and United States v. Spruill: “totality of the circumstances” inquiry; waiver can arise from tactical choices or explicit confirmations of no objection.

The court explored scenarios that may constitute waiver:

  • Invited error / proposing the challenged condition (citing United States v. Teague by analogy; and Second Circuit discussion in United States v. Graham, United States v. Quinones, and United States v. Spruill).
  • Selective written objections (noting the Seventh Circuit’s approach in United States v. Tjader).
  • Explicit “no objections” after a specific inquiry (citing United States v. Agrawal and comparing United States v. Hinds).

Applying those principles, the court found forfeiture: Salvador did not draft the condition, did not selectively object, and was not specifically asked whether he objected to the special conditions—he was only asked generally whether any “legal reason” prevented imposing the sentence. Under Hunter v. United States, that was not an affirmative abandonment.

4. Procedural reasonableness and statement-of-reasons doctrine for conditions

On the merits, the court treated the reasons requirement as flexible and satisfied when the justification is clear from the record:

  • United States v. Betts: district courts must state reasons for special conditions.
  • United States v. Sims (quoting United States v. Haverkamp): conditions must bear a “reasonable relationship” to § 3553(a) factors.
  • United States v. Kunz: courts need not explain “point-by-point” how each condition maps to conduct.
  • United States v. Lawrence and United States v. Thompson: special-condition reasoning is a subset of overall sentencing explanation; a sufficient global explanation can carry the conditions.
  • United States v. Lewis: appellate court may affirm if reasons are “self-evident in the record.”

The court found the “self-evident” rationale in Salvador’s violent, gang-related conduct and the need to protect the public under 18 U.S.C. § 3553(a)(2)(C).

5. Supervised release for deportable noncitizens

Salvador relied on the Sentencing Commission’s general recommendation against supervised release for deportable noncitizens. The panel addressed this using:

  • U.S.S.G. § 5D1.1(c) (ordinarily no supervised release for deportable defendants) and commentary note 9 (permitting it when it provides added deterrence/protection).
  • United States v. Alvarado: district courts need not expressly cite § 5D1.1; if the need for added deterrence/protection is apparent, the sentence may stand.
  • United States v. Ellis (summary order): an example of affirming without explicit guideline citation when the record supports added deterrence/protection.

The court held Salvador’s MS-13-related violence supported added deterrence/protection, making supervised release—and the immigration-related condition—procedurally permissible even without an explicit § 5D1.1 discussion.

6. Vagueness doctrine for supervised-release conditions

The court evaluated vagueness objectively, relying on:

  • United States v. Green: condition must give a person of ordinary intelligence reasonable notice.
  • United States v. Johnson: conditions need not spell out every “self-evident detail.”
  • United States v. MacMillen (quoting United States v. Simmons): unconstitutional if people of common intelligence must guess and differ about meaning.

The panel held “immigration authorities” plainly refers to U.S. immigration authorities in context (an impending ICE process), and the condition does not compel compliance with “unlawful” instructions as a matter of reasonable reading and ordinary legal constraints.

7. Impermissible delegation of sentencing authority

The delegation claim was rejected using the Second Circuit’s established line between delegating ministerial implementation and delegating the core liberty-restricting choice:

  • United States v. Carlineo: only the court may fashion the sentence’s terms.
  • United States v. Degroate: “ultimate decision” to restrict liberty must remain with the court.
  • United States v. Matta: example of improper delegation where a non-judicial actor effectively chooses inpatient versus outpatient treatment (a major liberty difference).

The panel characterized the challenged condition as akin to standard supervision requirements to follow directions; it did not empower immigration authorities to set the punishment or decide whether Salvador’s liberty is restricted. Any alleged violation would still be adjudicated by the district court through revocation procedures.

8. Enforcement and revocation remain judicial

In addressing the concern that immigration officials might effectively “decide” compliance, the court pointed to statutory and case-law safeguards:

  • 18 U.S.C. §§ 3583(e), 3606: the court adjudicates supervised-release violations and potential revocation.
  • United States v. Fernandez: illustrates the court’s role via violation hearings.

B. Legal Reasoning

1. The court’s methodology: threshold barriers first

The opinion proceeds in a structured sequence: jurisdictional ripeness; waiver/forfeiture; then the merits under the proper standard (plain error). This sequencing matters because it determines the intensity of appellate scrutiny and whether the court will reach the merits at all.

2. Why the record made the rationale “self-evident”

Although the district court did not separately explain supervised release or each special condition, the Second Circuit treated the overall sentencing explanation—violent gang conduct, seriousness, pattern of criminal activity, public protection—as supplying a discernible rationale for continued supervision. The immigration condition, in turn, was viewed as a practical corollary of a deportable defendant’s likely interaction with ICE and potential post-removal scenarios (release into the United States, reentry, or instructions incident to removal).

3. Reading the condition “as written” and “in context”

The vagueness analysis depended heavily on context: Salvador is an undocumented noncitizen facing mandatory removal; therefore, “immigration authorities” is not an open-ended global reference but naturally points to U.S. immigration authorities managing removal and related compliance steps. The court also rejected hypotheticals (foreign officials; unlawful instructions) as inconsistent with ordinary understanding and the legal system’s background assumption that instructions must be lawful to be enforceable in revocation proceedings.

4. Delegation: compliance directions vs. sentencing power

The court drew a sharp line between:

  • Implementation directives (follow lawful instructions of supervising entities), and
  • Core sentencing decisions (what liberty restrictions apply, and what punishment follows a violation).

Because alleged noncompliance would still be tested in a judicial hearing and the court retained control of punishment, the condition did not transfer “sentencing authority” to immigration officials.

C. Impact

  • Clarifies preservation doctrine for conditions: The decision underscores that silence—without a specific invitation to object or other affirmative abandonment—generally results in forfeiture, not waiver, preserving at least plain-error review. This is practically important in supervised-release litigation where conditions are often adopted wholesale from PSRs.
  • Strengthens the “self-evident record” path to affirmance: By affirming without an explicit condition-by-condition explanation, the opinion signals that sentencing courts’ global § 3553(a) explanations can often sustain special conditions where the nexus is obvious.
  • Endorses standard immigration-cooperation conditions: The ruling will likely be cited to uphold similarly worded conditions against vagueness and delegation attacks, especially when the defendant’s removability is clear.
  • Confirms supervised release remains available for deportable defendants: Consistent with United States v. Alvarado, courts may impose supervised release despite U.S.S.G. § 5D1.1(c) where the record supports added deterrence/protection (e.g., gang violence), even without explicitly discussing the guideline.
  • Constrains overexpansive delegation arguments: The decision narrows successful delegation challenges to cases like United States v. Matta where an executive actor chooses between materially different liberty restrictions.

IV. Complex Concepts Simplified

  • Ripeness: A court hears a dispute only when it is ready for decision. If a challenge depends on unknown future facts, it may be “unripe.” But if the question is purely legal (what a condition means; whether it delegates power), it is usually ripe immediately.
  • Waiver vs. forfeiture:
    • Waiver = intentionally giving up a right (often not reviewable on appeal).
    • Forfeiture = failing to object in time (still reviewable, but only for “plain error”).
    Under Hunter v. United States, courts look for an “affirmative signal” before finding waiver.
  • Plain error review: A demanding appellate standard applied when no timely objection was made. The defendant must show a clear/obvious error that affected substantial rights and the fairness/integrity of proceedings.
  • Vagueness (due process): A condition must be understandable enough that an ordinary person can tell what is required or prohibited. It need not define every term with technical precision.
  • Impermissible delegation: Courts may delegate details of implementation, but not the core choice of how a sentence restricts liberty. Conditions become problematic when an executive officer can decide major liberty outcomes.
  • U.S.S.G. § 5D1.1(c): The Guidelines generally advise against supervised release for deportable noncitizens, because removal often replaces the supervision function. But courts can still impose it when extra deterrence and public protection are warranted.

V. Conclusion

United States v. Salvador affirms a common immigration-related supervised-release condition and, in doing so, reinforces several doctrinal guardrails: (1) legal challenges to supervised-release conditions are typically ripe even long before supervision begins; (2) absent an affirmative abandonment, failure to object is forfeiture, not waiver, preserving only plain-error review; (3) sentencing explanations may suffice for special conditions where the rationale is self-evident; and (4) requiring compliance with immigration authorities’ instructions is neither unconstitutionally vague nor an impermissible delegation when courts retain adjudicative control over alleged violations and punishment. In the broader landscape of supervised-release litigation—especially for deportable defendants—Salvador provides a blueprint for sustaining standard conditions against procedural, vagueness, and delegation attacks when the record clearly supports deterrence and public safety concerns.