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1928

Implementing Judicial Deportation—General Concerns

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:

  1. any "aggravated felony," as defined in 8 U.S.C. §  1101(a)43; or

  2. 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

  3. 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 A request for a judicial order of deportation should be withdrawn if it appears that a colorable claim for relief from deportation exists.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.

[cited in USAM 9-73.500]