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1922

Deportation as a Condition of Supervised Release -- Introduction and Background

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.

[cited in USAM 9-73.500]