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Criminal Resource Manual

1926. Judicial Deportation -- Statutory Provisions

Outdated—pending revision.


On October 25, 1994, the President signed into law the Immigration and Nationality Technical Corrections Act of 1994 ("Act"). The Act contains a new judicial deportation provision, to be codified at 8 U.S.C. § 1252a(d). Section 1252a(d)(1), provides that a United States District Court can enter a judicial order of deportation at the time of sentencing against an alien whose criminal conviction causes such alien to be deportable under 8 U.S.C. § 1251(a)(2)(A), if such an order has been requested by the United States Attorney with the concurrence of the Commissioner of INS.

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. 1934

To utilize 8 U.S.C § 1252a(d)(2), the United States Attorney must, prior to commencement of trial or entry of a guilty plea, file with the district court and serve upon the defendant and INS a notice of intent to request judicial deportation. A sample notice of intent is attached at Appendix E 1935. In addition, at least 30 days prior to the date set for sentencing, the United States Attorney must file a charge containing factual allegations regarding the alienage of the defendant and identifying the crime or crimes which make the defendant deportable under 8 U.S.C. § 1251(a)(2)(A). This document requires the concurrence of INS. Sample charging documents are attached at Appendices F, 1936 G, 1937 and H 1938.

At sentencing, an alien is entitled to a reasonable opportunity to examine the evidence against him, to present evidence on his own behalf, and to cross-examine witnesses presented by the government. In determining whether to enter a judicial deportation order, the court can only consider evidence that would be admissible in administrative deportation proceedings. However, the statute provides that nothing in it limits the information the court may receive for purposes of imposing sentence. The court may order deportation if the Attorney General demonstrates that the alien is deportable under the INA. 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 1939.

[cited in USAM 9-73.500]