Where an alien defendant is unwilling to stipulate to deportation, and
thus
is not the beneficiary of any plea agreement, a provision of the Sentencing
Reform Act may be used in certain circumstances to effect the defendant's
deportation. Under 18 U.S.C. § 3583(d), a sentencing court has the
authority
to provide for the deportation of an alien defendant as a condition of
supervised
release. In relevant part, the statute provides that,
[i]f an alien defendant is subject to deportation, the court may
provide, as a condition of supervised release, that he be deported and
remain
outside the United States, and may order that he be delivered to a duly
authorized immigration official for such deportation.
Unlike a judicial order of deportation which may be entered only if a
defendant
is deportable based on certain criminal convictions, 8 U.S.C. §
1251(a)(2)(A), the court may provide for deportation as a condition of
supervised
release under section 3583(d) if the defendant is deportable for any reason.
The
most common grounds of deportation are entry without inspection and
violation of
nonimmigrant status.
Two courts of appeals have arrived at conflicting interpretations of
this
provision. In United States v. Sanchez, 923 F.2d 236 (1st Cir.
1991), the
court held that Section 3583(d) does not authorize a sentencing court
to
enter a judicial order of deportation, and thus does not deprive an alien
defendant of his right to an administrative hearing provided by the
Immigration
and Nationality Act (INA). Instead, the court held that the statute only
permits
a district court to order that the alien defendant be delivered to INS for
deportation proceedings. See also United States v. Ramirez,
948
F.2d 66 (1st Cir. 1991) (Breyer, C.J.). In contrast, the Eleventh Circuit
held
in United States v. Chukwura, 5 F.3d 1420 (11th Cir. 1993),
cert.
denied, 115 S. Ct. 102 (1994), that section 3583(d) does
authorize
a district court to order an alien defendant deported as a condition of
supervised release without affording the defendant an opportunity for
recourse
to the administrative procedures set forth in the INA. The decisions in
both
Sanchez and Chukwura were consistent with the positions taken
by
the United States in the respective cases. The petitioner in
Chukwura
noted these inconsistent positions of the United States in the petition for
a
writ of certiorari that he filed in the United States Supreme Court.
In light of those inconsistent positions, the Solicitor General, in
consultation with the Criminal Division, the INS, the Attorney General's
Advisory
Committee of United States Attorneys, and other components of the
Department,
undertook a thorough review of the legal issue presented. As a result of
that
review, the Department concluded that section 3583(d) does not authorize a
district court to order an alien defendant deported without recourse to the
procedures established by the INA. The Department set forth that new
position
in its response to Chukwura's certiorari petition.
| October 1997
| Criminal Resource Manual 1922
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