To make effective use of section 3583(d), Federal prosecutors should ensure that probation officers have sufficient information to include in presentence reports: (1) a statement of the reasons why a particular alien defendant is deportable and (2) a recommendation that the sentencing court provide as a condition of supervised release that the defendant be deported and remain outside the United States. When the presentence investigation report does not contain such a recommendation, the prosecutor should file and/or make such objections as are necessary in order to preserve the issue for sentencing and possible appeal. At sentencing, the prosecutor should recommend directly to the district court that deportation be a condition of supervised release.
A Federal prosecutor prosecuting any alien should inform INS District Counsel or the designated INS contact as soon as possible after the defendant is indicted or charged. Timely coordination with INS will allow INS to provide information to the probation officer on the deportability of the defendant, and to complete deportation proceedings against deportable federal inmates while they are serving their sentences.
There may be cases in which, through no fault of the alien, a final deportation order has not been entered by the time the alien's term of imprisonment ends and his period of supervised release is scheduled to begin. In other cases, an alien prisoner may obtain relief from deportation prior to the beginning of his period of supervised release. In these situations, Federal prosecutors generally should consent to a modification of the terms of supervised release, after consultation with INS District Counsel. INS, however, may choose to detain an alien who is still subject to deportation.
[cited in JM 9-73.500]