Office of the Attorney General
MEMORANDUM TO ALL FEDERAL PROSECUTORS
FROM: THE ATTORNEY GENERAL
SUBJECT: DEPORTATION OF CRIMINAL ALIENS
II. STIPULATED ADMINISTRATIVE DEPORTATION IN PLEA AGREEMENTS
III. DEPORTATION AS A CONDITION OF SUPERVISED RELEASE
(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.4
1. An alien defendant subject to such an order violates a condition of his supervised release unless, at the end of his period of incarceration, he is under a final order of deportation and is ready for deportation. If the alien defendant resists or delays deportation at the end of the incarceration period, he may be subject to reincarceration or modification of the conditions of his supervised release.
2. An alien defendant subject to a Section 3583(d) order who is deported and then returns to the United States violates a condition of his supervised release and is subject to reincarceration, pursuant to 18 U.S.C. § 3583(e)(3). This consequence should provide a deterrent against subsequent illegal entry and will also save prosecutorial resources by eliminating the need for a separate prosecution for reentry after deportation.
3. Delays in the immigration process will be reduced if, in light of the incentives provided by section 3583(d), criminal aliens consent to administrative deportation rather than remain in jail to contest deportation.
IV. JUDICIAL DEPORTATION
The statute does not make clear whether the court's authority to order judicial deportation is limited to the current conviction or convictions which cause the alien defendant to be deportable under 8 U.S.C. 1252a(2) (A), and for which the alien is about to be sentenced, or whether the court can order judicial deportation at sentencing for any federal conviction, if the alien has any prior state or federal conviction which causes the alien to be denortable under § 1252a(2)(A). Because the statutory language refers to sentencing upon a conviction which "causes such alien to be deportable," Federal prosecutors should proceed on the more limited premise that Congress intended to limit judicial deportation authority to those convictions for which the alien is before the court for sentencing.
(A) any "aggravated felony," as defined in 8 U.S.C. § 110l(a)43;8 or:
(B) 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
(C) two or more serious crimes of violence that indisputably involve moral turpitude--, 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.
1 Typically, these would include certain crimes involving moral turpitude, 8 U.S.C.§ 1251(a)(2)(A)(i) and (ii), or any aggravated felony, 8 U.S.C. § 1251(a)(2)(A)(iii). In addition, a plea to certain offenses relating to controlled substances, firearms, document fraud, and national security would cause an alien to be deportable. 8 U.S.C. § 1251(a)(2), (3) and (4).
2 A list of designated INS contacts is attached at Appendix A.
3 If deportability will be based on the conviction to which the alien will plead guilty, the alien must accept the deportation order at the time of sentencing. However, if deportability will be based on independent grounds, such as entry without inspection, the deportation order can be obtained prior to sentencing. In any event, the deportation order will not be executed until after sentencing and the service of any term of incarceration that is imposed.
4 Unlike a judicial order of deportation (see section IV infra) 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.
5 Grounds for deportability under 8 U.S.C. § 1251(a)(2)(A), which encompass convictions for certain crimes involving moral turpitude and "aggravated felonies," are discussed at Appendix D.
6 However, the statute provides that nothing in it limits the information the court may receive for purposes of imposing sentence.
7 If the court determines that the defendant has presented substantial evidence to establish prima facie eligibility for relief from deportation, INS must provide the court with a report regarding the alien's eligibility for relief, 8 U.S.C. § 1252a(d)(2)(C). A more detailed discussion of the available relief from deportation is provided at Appendix I.
8 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.
9 The INS commissioner's concurrence authority has been delegated to the INS District Director of each INS District Office. Delegation down to the level of Assistant District Directors and to the Officer in Charge, where applicable, is also authorized.