Attorney General's Memorandum on Deportation of
On April 28, 1995, the Attorney General issued a memorandum to all
prosecutors entitled Deportation of Criminal Aliens. The policy
set forth in this memorandum is significant because, for the first time, the
Attorney General has directed that all federal prosecutors become actively
directly involved in the process to remove criminal aliens from the United
With regard to the recently enacted judicial deportation provisions set
forth in Section 242A(d) of the Immigration and Nationality Act, 8 U.S.C.
1252a(d), the memorandum notes that there are ambiguities that may make
implementation problematic, and that the Department would propose corrective
legislation as needed.These ambiguities include: (1) uncertainty as to the
of the court's authority to order judicial deportation, (2) uncertainty as
whether Congress intended an appeal of a judicial deportation order to be
separate from the underlying criminal appeal, and (3) uncertainty as to
a denial of a request for judicial deportation, on the merits, precludes
administrative deportation proceedings against the alien based on principles
res judicata/collateral estoppel. The Department has drafted corrective
legislation. S.754, 104th Congress, 1st Session.
With regard to the authority of a district court to enter a judicial
deportation order, the Department has proposed that the court have authority
enter such an order at the time of sentencing against an alien, "(i) whose
criminal conviction for an offense for which the alien is before the court
sentencing causes such alien to be deportable under section 241(a)(2)(A), or
who previously has been convicted of an aggravated felony at any time."
With regard to appeals of judicial orders of deportation, the
has proposed that "[a]ppellate review of any judicial order of deportation
be considered as part of the underlying criminal case and subject to all of
procedures and filing deadlines governing criminal appeals."
The Department has proposed corrective legislation that would provide
any denial of a request for judicial deportation, with or without a decision
the merits, would not preclude further administrative deportation
against the alien on the same ground or any other ground of deportability.
Finally, it should be noted that when Congress passed the judicial
deportation provisions, it also passed the new summary deportation
applicable to alien aggravated felons not lawfully admitted for permanent
residence. INA § 242A(b), 8 U.S.C. § 1252a(b). On August
INS final rule implementing this new procedure was published. 60 FR 43954.
availability of this new summary procedure may prove to be a faster and less
burdensome method of effecting the deportation of such aliens, as opposed to
seeking judicial deportation orders to accomplish the same result.
[cited in USAM 9-73.500]