United States v. Oboh , 65 F.3d 900 ( 1995 )

BARKETT, Circuit Judge, dissenting, in which KRAVITCH,
ANDERSON, BIRCH and CARNES, Circuit Judges, join:
I believe the majority errs in adhering to United States v.
Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115 S. Ct.
102 (1994). Like the First, Fourth, and Fifth Circuits, I believe
that 18 U.S.C. § 3583(d) provides only that a defendant who is
subject to deportation may be surrendered to the INS for
deportation proceedings in accordance with the Immigration and
Naturalization Act ("INA").1 Because the language of § 3583(d) is
subject to different interpretations, we must look to the overall
statutory scheme, and prior legislative and judicial history, which I
believe support the view that a district court may only surrender a
defendant who is subject to deportation to the INS for deportation
proceedings, not independently order the deportation.
First, although the majority purports to rely on the "plain
language" of § 3583(d) to support its conclusion, the language of
the statute is not so plain. It provides, in relevant part:
If an alien defendant is subject to deportation, the court
may provide, as a condition of supervised release, that
he be deported and remain outside the United States, and
may order that he be delivered to a duly authorized
immigration official for such deportation.
18 U.S.C. § 3583(d).
Section 3583(d) does not state that the court may "order" that
the alien be deported; it instead permits the court to "provide" that
the alien be deported and remain outside of the United States. That
1
As the majority notes, the three other circuits to interpret §
3583(d) have held that the section, read in light of the provisions of
the INA, does not authorize judicial deportations, United States v.
Xiang, 77 F.3d 771, 772 (4th Cir. 1996); United States v. Quaye,
57 F.3d 447, 449-51 (5th Cir. 1995); United States v. Sanchez, 923
F.2d 236, 237 (1st Cir. 1991).
choice of words does not appear to have been inadvertent. The
two preceding sentences in § 3583(d) identify things that the court
may "order" the defendant to do or not to do as conditions of
supervised release, and the final clause of the final sentence states
that the court may "order" that the defendant be delivered to a duly
authorized immigration official for deportation. In this statutory
context, the term "provide" in the portion of the sentence at issue
here indicates that it is intended to authorize the court to "make
provision" for the alien's deportation, thereby facilitating such
action by surrendering the defendant to the INS deportation
proceedings, but not to order the INS to deport the defendant
without the attendant process established by the INA. See
Webster's Third New International Dictionary 1827 (1986)
(defining "provide").
Furthermore, § 3583(d) authorizes the court to provide that
the defendant be deported "as a condition of supervised release."
That language similarly weighs against Chukwura's interpretation
of § 3583(d). By stating that the court may include deportation as
a condition of supervised release, the language implies that the
consequence of a failure to satisfy that condition (where, for
example, the INS does not order the defendant deported) is that the
court may revoke the defendant's supervised release pursuant to §
3583(e)(3) and require the defendant to serve the period of
supervised release in prison -- not that the court may independently
2
order the INS to deport the defendant.2 If Congress intended to
authorize a court to enter a judicial order of deportation outside the
framework of the INA, it more likely would have included such a
measure as an independent element of the sentence, rather than as a
condition of supervised release, which is limited, of course, to
those deportable alien defendants for whom supervised release is
ordered at sentencing.
Indeed, the majority fails to consider the purpose of § 3583(d)
as a whole, which provides for supervised release. Without a
provision such as the last sentence of § 3583(d), "administrative"
deportation by the INS might be regarded as inconsistent with
judicially supervised release, which requires a defendant to not leave the
judicial district without the permission of the court or probation officer. The relevant
provision, therefore, removes any doubt about the INS's authority
to deport the defendant after his period of imprisonment ends and
he is placed on supervised release, and is an efficient mechanism
by which the court "permits" the defendant to leave the judicial
district if the INS orders him to be deported.
Interpreting § 3583(d) as simply facilitating the surrender of
defendants subject to deportation to the INS for deportation
proceedings also conforms with the uniform historical practice of
Congress conferring the authority to institute deportation
2
For example, if the defendant is not ordered deported by the
INS -- either because he is not found to be deportable, or is granted
discretionary relief from deportation -- the sentencing court could,
in the alternative, modify the order of supervised release to delete
the deportation provision. See generally, 18 U.S.C. § 3583(e) (2).
Under Chukwura, however, the INS has no opportunity to make
this determination, or to grant discretionary relief.
3
proceedings against an alien on Executive Branch officials.
Congress has acted pursuant to the constitutional understanding
that the "power to expel or exclude aliens [is] a fundamental
sovereign attribute exercised by the Government's political
departments largely immune from judicial control." Shaughnessy
v. Mezei, 345 U.S. 206, 210 (1953).
The INA, in 8 U.S.C. § 1252 and implementing regulations,
has established the administrative procedures used by the Attorney
General in determining whether an alien who is charged with being
deportable under 8 U.S.C. § 1251 is, in fact, deportable. Section
1252(b) provides that "the procedure so prescribed shall be the sole
and exclusive procedure for determining the deportability of an alien
under this section," and that "[i]n any case in which an alien is
ordered deported from the United States under the provisions of
this chapter, or of any other law or treaty, the decision of the Attorney
General shall be final." (emphasis added). See also 8 U.S.C. §
1103(a) ("The Attorney General shall be charged with the
administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens, except
insofar as this chapter or such laws relate to the powers, functions,
and duties conferred upon the President, the Secretary of State, the
officers of the Department of State, or diplomatic or consular
officers"); Sale v. Haitian Centers Council, Inc., 113 S.Ct. 2549,
2559-60 (1993).
The reference to deportation in § 3583(d) is contained in a
single sentence that does not expressly carve out an exception to
4
the Attorney General's authority over immigration matters, and the
legislative history discloses no evidence of congressional intent to
do so. It is very unlikely that Congress intended through that
single sentence to displace the Attorney General's authority and
enforcement discretion in determining whether to institute
deportation proceedings against an alien, and, if found deportable,
whether to grant the alien discretionary relief.3 It is also very
unlikely that Congress, without saying so, intended § 3583(d) to
have the effect of rendering the aliens to whom it applies
altogether ineligible for such discretionary relief. As the Quaye
court noted:
The First Circuit's interpretation of § 3583(d) also
preserves Congress's long tradition of granting the
Executive Branch sole power to institute deportation
proceedings against aliens. We are unwilling to
conclude that Congress intended to undermine that
executive prerogative sub silentio in § 3583(d), or that
Congress intended by its silence to deprive aliens
deported at sentencing of such relief as alien asylum,
which the Attorney General may grant.
Quaye, 57 F.3d at 449-50.
The background of § 3583(d) further reinforces my reading of
the statute. The initial predecessor of the current § 3583(d) was
enacted in 1931 as an amendment to the former 18 U.S.C. § 716(1925), which governed the parole of prisoners. The amendment
provided that
where a Federal prisoner is an alien and subject to
deportation the board of parole may authorize the release
3
Even if an alien is deportable, the INA confers on the
Attorney General the authority to grant the alien asylum, or other
relief from deportation. See, e.g., 8 U.S.C. §§ 1158, 1182(c),
1253(h), 1254(a) and (e).
5
of such prisoner after he shall have become eligible for
parole on condition that he be deported and remain
outside of the United States and all places subject to its
jurisdiction, and upon such parole becoming effective
said prisoner shall be delivered to the duly authorized
immigration official for deportation.
Act of March 2, 1931, ch. 371, 46 Stat. 1469.
The committee reports accompanying the 1931 Act explained
that because the rules governing parole required that a prisoner
remain within the jurisdiction of the court, an alien prisoner, who if
paroled would be deported, could not be paroled. The legislation
was therefore designed to make it possible for prison authorities
"to surrender the alien prisoner to immigration officials for
deportation" as soon as the prisoner became eligible for parole,
"thus shortening the time the Government must retain him in
custody." S. Rep. No. 1733, 71st Cong., 3d Sess. 1 (1931)("Senate
Report"); H. R. Rep. No. 1035, 71st Cong., 2d Sess. 1 (1930).
The Senate Report reproduced a letter requesting passage of the
legislation from Attorney General William D. Mitchell, which
stated:
At the present time there are several
hundred inmates serving sentences in Federal
prisons who should be deported. Under the
present state of the law it has been deemed
inconsistent to grant a parole and then
immediately take the prisoner into custody
under deportation proceedings. Specific
authority to parole prisoners who are aliens
and subject to deportation seems necessary.
Senate Report at 2. The 1931 Act did not authorize the Parole
Board to order the deportation of an alien and supplant the normal
deportation procedures. It was intended, rather, to provide a
6
mechanism to grant an alien parole "and then immediately take the
prisoner into custody under deportation proceedings." Senate
Report at 2 (emphasis added). The provision was judicially
construed in that manner in Secchi v. U.S. Bureau of Immigration,
58 F. Supp. 569 (M.D. Pa. 1945), in which the court explained that
the alien's parole was "conditional for his deportation to England."
Id. at 570. The court explained that parole
is not for the petitioner's general release from
imprisonment and can become effective only
if and when the duly authorized immigration
officials make the necessary arrangements for
the deportation of the petitioner, at which time
the prisoner shall be delivered to them. . . .
The action of the Parole Board cannot compel the
Immigration Authorities to complete deportation proceedings.
The parole is granted in order to remove an
obstacle in the action contemplated by the
Immigration Authorities. The action of the
Parole Board is taken so that if the
Immigration Authorities desire to complete
the deportation, they may complete it
effectively without being compelled to await
the completion of the service of petitioner's
sentence.
Id. (citations omitted) (emphasis added). The provision was
subsequently recodified at 18 U.S.C. § 4204 (1952), see Act of
June 25, 1948, ch. 645, § 4204, 62 Stat. 854, and later at 18 U.S.C.
§ 4212 (1976), see Parole Commission Reorganization Act., Pub.
L. No. 94-233, § 4212, 90 Stat. 227 (Mar. 15, 1976).
Section 4212 was repealed by the Sentencing Reform Act of
1984, which eliminated the parole system and instituted the system
of supervised release, including the current § 3583(d) at issue here.
See Pub. L. No. 98-473, Tit. II, ch. 2, §§ 218(a)(5), 235, 98 Stat.
2027, 2031. Although the committee reports on the Sentencing
7
Reform Act do not specifically discuss the relevant sentence of §
3583(d) concerning deportation of aliens, it is obvious that the
sentence was patterned after the former § 4212.4 This background
suggests that § 3583(d), like its predecessor governing parole, does
not authorize a judicial order of deportation, but instead preserves
the established procedures under the authority of the INS for
effecting the deportation of an alien.
I believe the First, Fourth, and Fifth Circuits' interpretation of
§ 3583(d) is not only truer to the overall scheme Congress
developed to deal with questions concerning immigration law, but
also consistent with the case law interpreting other sentencing
provisions. District courts historically have lacked the authority to
order the deportation of alien defendants who appear before them
for criminal sentencing. United States v. Guevara-Martinez, 597
F.2d 954, 955 n.1 (5th Cir. 1979) (holding that judiciary lacks
authority to order deportation).5 E.g., United States v. Olvera, 954
4
The former 18 U.S.C. § 4212 (1982), as in effect when the
Sentencing Reform Act was passed, provided:
When an alien prisoner subject to
deportation becomes eligible for parole, the
Commission may authorize the release of such
prisoner on condition that such person be
deported and remain outside the United
States.
Such prisoner when his parole becomes
effective, shall be delivered to the duly
authorized immigration official for
deportation.
5
Pursuant to Bonner v. City of Prichard, Ala., 661 F.2d 1206,
1209 (11th Cir.1981) (en banc), decisions of the former Fifth
Circuit entered prior to the split establishing the Eleventh Circuit
are binding on the Eleventh Circuit.
8
F.2d 788, 793-94 (2d Cir. 1992) (holding that sentencing court
cannot order deportation as part of sentence); United States v.
Jalilian, 896 F.2d 447, 448-49 (10th Cir. 1990) (holding illegal
deportation as condition of probation pursuant to 18 U.S.C. §
3563); United States v. Montoya, 891 F.2d 1273, 1293 n.24 (7th
Cir. 1989) (noting in dictum that institution of deportation
proceedings lies within sole discretion of Attorney General);
United States v. Abushaar, 761 F.2d 954, 959-61 (3d Cir. 1985)
(holding that 18 U.S.C. § 3651 does not permit banishment of alien
defendant as condition of probation); United States v. Hernandez,
588 F.2d 346, 350-52 (2d Cir. 1978) (declaring condition of
deportation illegal as special parole term); United States v.
Castillo-Burgos, 501 F.2d 217, 219-20 (9th Cir. 1974) (holding
sentence of deportation to be illegal). Subsequent congressional
action also lends support to the view that § 3583(d) does not
authorize district courts to independently order deportations. Since
Chukwura was decided, Congress amended 8 U.S.C. § 1252a(d) to
permit limited "judicial" deportation of aliens convicted of crimes
of moral turpitude or aggravated felonies, but only upon the
request of the U.S. Attorney and the concurrence of the INS. The
1994 amendment provides that
[n]otwithstanding any other provision of this
chapter, a United States district court shall have
jurisdiction to enter a judicial order of deportation at the
time of sentencing against an alien whose criminal
conviction causes such alien to be deportable under
section 1251(a)(2)(A) of this title, if such an order has
been requested by the United States Attorney with the
concurrence of the Commissioner [of the INS] and if the
court chooses to exercise such jurisdiction.
9
8 U.S.C. § 1252a(d)(1) (emphasis added).
As Quaye recognized, to read a general power of judicial
deportation into § 3583(d), in light of this intervening amendment
to § 1252a, would permit district courts to deport some aliens
convicted of relatively less serious crimes without affording them
any procedural safeguards, with the inapposite result that aliens
convicted of particularly heinous crimes would receive the more
expansive procedural checks available within the auspices of the
Attorney General and INS.6 Quaye, 57 F.3d at 450; see also Xiang,
77 F.3d at 773 ("The exception that Congress provided for judicial
deportation would be meaningless if we could now read § 3583(d)
to authorize judicial deportation for lesser crimes without any
procedural safeguards."). "[I]nterpretations of a statute which
would produce absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose are
available." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
575, 102 S.Ct. 3245, 3252 (1982); In re Chapman, 116 U.S. 661,
667, 17 S.Ct. 677, 680 (1897) ("nothing is better settled than that
statutes should receive a sensible construction, such as will
effectuate the legislative intention, and, if possible, so as to avoid
an unjust or an absurd conclusion").
Accordingly, for the foregoing reasons, I do not believe
6
Ironically, if Bowen were convicted not of illegal reentry into
the United States and misdemeanor possession of marijuana, but a
more serious offense such as murder, he would have been entitled
to the greater procedural safeguards established by § 1252a.
Section 1252a is inapplicable to Oboh's sentencing, however,
because it had not yet taken effect at the time Oboh entered his
guilty plea.
10
district courts have the authority to independently order
deportation.7
7
Because I believe that the district court had no authority to
order Oboh deported, I do not address the majority's holding that
Oboh received adequate notice as to his deportability. By not
addressing it, I do not mean to imply agreement with the majority's
resolution of the issue.
11