In order to maintain a consistent national immigration policy, close
questions relating to alienage, deportability, and particularly relief from
deportation should be initially decided in administrative proceedings,
followed
by judicial review, rather than having these issues addressed first in
criminal
cases. Therefore, in view of the Department's responsibility to administer
and
enforce immigration laws, and considering the ambiguities in the judicial
deportation statute, prosecutors should not seek judicial deportation if the
district courts necessarily will become involved in contentious immigration
issues. Accordingly, requests for judicial deportation should be made only
if
the alien defendant does not have lawful permanent residence, and where the
offense[s] for which the alien is to be sentenced is:
any "aggravated felony," as defined in 8 U.S.C. §
1101(a)43;
or
a serious crime of violence that indisputably involves moral turpitude
--
i.e., voluntary manslaughter, kidnapping, sexual abuse, arson,
robbery,
burglary, or aggravated assault -- committed within five years of entry, but
which does not amount to an "aggravated felony," since the anticipated
sentence
of imprisonment, under the sentencing guidelines, will be more than one
year, but
less than five years; or
two or more serious crimes of violence that indisputably involve moral
turpitude -- i.e. voluntary manslaughter, kidnapping, sexual abuse, arson,
robbery, burglary, or aggravated assault -- not arising out of a single
scheme,
committed any time after entry, but which do not amount to "aggravated
felonies,"
since the anticipated sentence, under the sentencing guidelines, will be
less
than five years.
With regard to (B) and (C) above, although 8 U.S.C. § 1251(a)(2)
could
encompass any "crime involving moral turpitude," it is important that
prosecutors
not seek judicial deportation in situations where the courts may be
required to define the limits of that term. Such determinations are better
made
in administrative proceedings.
For similar reasons, a judicial order of deportation should not be
sought
if the alien has any colorable claim for relief from deportation. A request
for
a judicial order of deportation should be withdrawn if it appears that a
colorable claim for relief from deportation exists. In this regard, you
should
be aware that an alien aggravated felon without lawful permanent residence
(green
card) status would generally be ineligible for any form of relief from
deportation.
Further, if a federal prosecutor, as part of plea negotiations, agrees
not
to seek judicial deportation, such plea agreement shall not bar or otherwise
affect a pending or future administrative deportation proceeding against the
defendant by INS.
In addition to the judicial deportation procedure, section 130004 of
the
Violent Crime Control and Law Enforcement Act of 1994 creates expedited
administrative procedures for the deportation of an alien who is not
lawfully admitted for permanent residence, who has committed an aggravated
felony, and who is not eligible for relief from deportation. Although this
expedited administrative procedure provides the alien with a number of
procedural
protections, it dispenses with the need for an administrative hearing before
an
immigration judge. Regulations implementing this provision will issued
soon.