The judicial deportation statute contains ambiguities which could make implementation problematic. The Department will propose corrective legislation as needed.
Authority: 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 deportable 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.
Appeals of Judicial Deportation Orders: In the absence of any clarifying legislative history, it is unclear whether the appeal procedures in the statute contemplate a unitary or bifurcated appeal. The statute provides that the appeal of a judicial deportation order, or of the denial of such an order, "shall be considered consistent with the requirements described in [8 U.S.C. § 1105a]" relating to the judicial review of administrative deportation orders. Section 1105a, in turn, incorporates the provisions and procedures prescribed by chapter 158 of Title 28, United States Code, relating to he review of orders of federal agencies. Although one might infer that Congress intended to separate the appeal of a judicial deportation order from the alien defendant's criminal appeal, the Department's view is that, just as a forfeiture order that accompanies a criminal conviction and sentencing is reviewed as part of the criminal appeal, appellate review of a judicial deportation order also should be accomplished as part of the related criminal appeal, not as a separate civil appeal.
Since the filing deadlines under 8 U.S.C. § 1105a are significantly longer than the deadline for filing a notice of appeal in a criminal case, we must anticipate that contested judicial deportation proceedings may produce independent notices of appeal. In such situations, prosecutors should, wherever possible, move to consolidate any appeal of a judicial deportation order with the defendant's appeal of his criminal conviction and any other aspect of the sentence.
Res Judicata/Collateral Estoppel: The statute expressly provides that denial of a request for a judicial order of deportation, without a decision on the merits, does not preclude administrative deportation proceedings against the alien on the same ground of deportability or any other ground of deportability. However, in the absence of extensive case law on the issue, it is unclear whether an adverse judicial decision, on the merits, as to alienage, deportability, or relief from deportation, would preclude further administrative deportation proceedings based on principles of res judicata/collateral estoppel. Because of this uncertainty, it is extremely important that Federal prosecutors consult closely with INS on any judicial deportation case to avoid the possibility of obtaining an adverse judicial ruling that might bar administrative deportation.
[cited in JM 9-73.500]