In contested cases, it will be particularly important to coordinate with INS to ensure that the available evidence will be sufficient to establish alienage and deportability. For example, in view of the res judicata/collateral estoppel implications discussed above, a judicial finding that the government's 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 filed in a timely manner, as with stipulated deportations.
For purposes of determining whether to enter a deportation order, the court can only consider evidence that would be admissible in administrative deportation proceedings, where the rules of evidence are traditionally inapplicable. The INA 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 law, the INS administrative record pertaining to the alien is admissible to establish alienage and immigration status. See generally Gordon and Mailman, Immigration Law and Procedure, § 72.04. The same rules should apply in judicial deportation proceedings. Under the statute, the alien is entitled to a reasonable opportunity to examine the evidence, to present evidence in his or her own behalf, and to cross-examine witnesses presented by the government. Prosecutors should seek the assistance of INS District Counsel if substantive issues of immigration law arise, or if there are issues about the admissibility 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. With regard to the burden of proof in deportation hearings, the Supreme Court has held 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. § 242.14.
As noted earlier, either party may appeal a judicial order of deportation or a denial of such an order to the court of appeals for the circuit in which the district court is located. Due to the above-noted ambiguity relating to the appeal procedures in the statute, the Department intends to minimize the number of appeals until corrective legislation can be enacted. Accordingly, contested judicial deportation should be pursued only in situations in which there is compelling evidence of alienage and deportability, and where the alien has no 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 condition of supervised release, pursuant to 18 U.S.C. § 3583(d). As noted above, such 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 JM 9-73.500]