Contested Judicial Deportation
In contested cases, it will be particularly important to coordinate
INS to ensure that the available evidence will be sufficient to establish
alienage and deportability. For example, in view of the res
estoppel implications discussed above, a judicial finding that the
evidence was insufficient to establish alienage might preclude any further
efforts to deport the alien.|
The notice of intent to request judicial deportation, as well as the
charging document setting forth the Commissioner's concurrence, must be
a timely manner, as with stipulated deportations.
For purposes of determining whether to enter a deportation order, the
can only consider evidence that would be admissible in administrative
proceedings, where the rules of evidence are traditionally inapplicable.
requires only that the evidence in deportation proceedings be "reasonable,
substantial, and probative." 8 U.S.C. § 1252(b)(4).
Essentially, the evidence in a deportation hearing must have probative
value and be consistent with a fair hearing. For example, under immigration
the INS administrative record pertaining to the alien is admissible to
alienage and immigration status. See generally Gordon and
Immigration Law and Procedure, § 72.04. The same rules should
in judicial deportation proceedings. Under the statute, the alien is
to a reasonable opportunity to examine the evidence, to present evidence in
or her own behalf, and to cross-examine witnesses presented by the
Prosecutors should seek the assistance of INS District Counsel if
issues of immigration law arise, or if there are issues about the
of evidence at deportation proceedings.
The statute provides that the court may order the alien deported if the
Attorney General demonstrates that the alien is deportable under the INA.
regard to the burden of proof in deportation hearings, the Supreme Court has
that "no deportation order may be entered unless it is found by clear,
unequivocal, and convincing evidence that the facts alleged as grounds for
deportation are true." Woodby v. INS, 385 U.S. 276 (1976). The same
standard has been incorporated into INS regulations. 8 C.F.R.
As noted earlier, either party may appeal a judicial order of
or a denial of such an order to the court of appeals for the circuit in
district court is located. Due to the above-noted ambiguity relating to the
appeal procedures in the statute, the Department intends to minimize the
of appeals until corrective legislation can be enacted. Accordingly,
judicial deportation should be pursued only in situations in which there is
compelling evidence of alienage and deportability, and where the alien has
colorable claim of relief from deportation.
Finally, in connection with any judicial deportation proceeding,
prosecutors may also request the court to provide for deportation as a
of supervised release, pursuant to 18 U.S.C. § 3583(d). As noted
an alien who reenters after deportation would be subject to immediate
incarceration for violating the terms of supervised release in addition to
prosecution for reentry after deportation.
[cited in USAM 9-73.500]