Unlike the First Circuit, however, we do not believe that section 3583(d) relegates a sentencing court to the relatively passive role of merely turning an alien defendant over to INS for deportation proceedings. The statute expressly authorizes a District Court to "provide, as a condition of supervised release," that the alien defendant be deported and remain outside the United States. Although deportation must be accomplished under the established procedures of the INA, it remains part of a judicial order that an alien defendant violates at his peril.
Viewed in this light, section 3583(d) can be used as an effective tool in obtaining the removal of criminal aliens. Indeed, a condition of supervised release requiring a defendant to be deported and to remain outside the United States has several important consequences:
- 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.
- 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.
- 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.
[cited in JM 9-73.500]