On April 28, 1995, the Attorney General issued a memorandum to all federal prosecutors entitled Deportation of Criminal Aliens. The policy guidance set forth in this memorandum is significant because, for the first time, the Attorney General has directed that all federal prosecutors become actively and directly involved in the process to remove criminal aliens from the United States.
With regard to the recently enacted judicial deportation provisions set forth in Section 242A(d) of the Immigration and Nationality Act, 8 U.S.C. § 1252a(d), the memorandum notes that there are ambiguities that may make implementation problematic, and that the Department would propose corrective legislation as needed.These ambiguities include: (1) uncertainty as to the scope of the court's authority to order judicial deportation, (2) uncertainty as to whether Congress intended an appeal of a judicial deportation order to be separate from the underlying criminal appeal, and (3) uncertainty as to whether a denial of a request for judicial deportation, on the merits, precludes further administrative deportation proceedings against the alien based on principles of res judicata/collateral estoppel. The Department has drafted corrective legislation. S.754, 104th Congress, 1st Session.
With regard to the authority of a district court to enter a judicial deportation order, the Department has proposed that the court have authority to enter such an order at the time of sentencing against an alien, "(i) whose criminal conviction for an offense for which the alien is before the court for sentencing causes such alien to be deportable under section 241(a)(2)(A), or (ii) who previously has been convicted of an aggravated felony at any time."
With regard to appeals of judicial orders of deportation, the Department has proposed that "[a]ppellate review of any judicial order of deportation shall be considered as part of the underlying criminal case and subject to all of the procedures and filing deadlines governing criminal appeals."
The Department has proposed corrective legislation that would provide that any denial of a request for judicial deportation, with or without a decision on the merits, would not preclude further administrative deportation proceedings against the alien on the same ground or any other ground of deportability.
Finally, it should be noted that when Congress passed the judicial deportation provisions, it also passed the new summary deportation provisions applicable to alien aggravated felons not lawfully admitted for permanent residence. INA § 242A(b), 8 U.S.C. § 1252a(b). On August 24, 1995, the INS final rule implementing this new procedure was published. 60 FR 43954. The availability of this new summary procedure may prove to be a faster and less burdensome method of effecting the deportation of such aliens, as opposed to seeking judicial deportation orders to accomplish the same result.
[cited in USAM 9-73.500]