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

United States Court of Appeals,
Eleventh Circuit.
Nos. 94-8154, 95-8143.
UNITED STATES of America, Plaintiff-Appellee,
v.
Henry Olushola OBOH, a/k/a Henry Osa Omoboh, a/k/a James Clark
a/k/a Derick Forest, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mitchel Augustus BOWEN, Defendant-Appellant.
Aug. 8, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-00318-CR-1), Richard C. Freeman,
Judge.
Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges, and HENDERSON*, Senior Circuit Judge.
HATCHETT, Circuit Judge:
In this consolidated appeal, the en banc court decides that it
will not overturn United States v. Chukwura, 5 F.3d 1420 (11th
Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 102, 130 L.Ed.2d
51 (1994).
In Chukwura, a panel of this court held that 18 U.S.C. §
3583(d) authorized a district court to order the deportation of a
defendant "subject to deportation" as a condition of supervised
release. Chukwura, 5 F.3d at 1423. Prior to the panel's opinion
in Chukwura, the First Circuit held that district courts lacked
*
Senior U.S. Circuit Judge Albert J. Henderson has elected
to participate in the decision in case No. 94-8154 pursuant to 28
U.S.C. § 46(c).
authority under section 3583(d) to order deportation and that
section 3583(d) merely permitted the district court to order the
surrender of the defendant to the Immigration and Naturalization
Service (INS) to receive process in accordance with the Immigration
and Nationality Act. See United States v. Sanchez, 923 F.2d 236(1st Cir.1991). Since Chukwura, the Fourth and Fifth Circuits have
also addressed this issue and joined the First Circuit in holding
that section 3583(d) does not permit district courts to order
deportation as a condition of supervised release. See United
States v. Xiang, 77 F.3d 771 (4th Cir.1996); see also United
States v. Quaye, 57 F.3d 447 (5th Cir.1995). In light of the
Fourth and Fifth Circuits' recent rejection of the panel's holding
in Chukwura, a majority of judges in regular active service voted
to address this issue en banc in these cases.
FACTS AND PROCEDURAL HISTORY
In March 1989, Mitchel Augustus Bowen pleaded guilty to a
two-count criminal indictment charging him with false
representation of United States citizenship in violation of 18
U.S.C. § 911 and possession of a firearm as a convicted felon in
violation of 18 U.S.C. § 992(g). After accepting Bowen's plea of
guilty, the district court sentenced Bowen to a term of
imprisonment and ordered, as a condition of supervised release, the
surrender of Bowen to the Immigration and Naturalization Service
(INS) for deportation proceedings. After Bowen served the
sentence, INS began deportation proceedings. On April 15, 1993,
INS returned Bowen to Jamaica, his native country. Bowen, however,
reentered the United States approximately one year later. On
October 11, 1994, INS agents received a "tip" that Bowen was living
in a hotel in Marietta, Georgia. INS agents went to the hotel and
arrested Bowen for unlawful reentry into the United States.
Pursuant to a lawful search warrant, the agents seized
approximately seven ounces of marijuana from a briefcase located
underneath the bed.
On November 3, 1994, the government filed a two-count criminal
information in the Northern District of Georgia charging Bowen in
Count I with violation of 8 U.S.C. § 1326, alleging that he
unlawfully reentered the United States after having been deported.
Count II of the information charged Bowen with possession of
marijuana in violation of 21 U.S.C. § 844. Bowen subsequently
entered a negotiated plea of guilty to both counts. On January 24,
1995, the district court sentenced Bowen to concurrent terms of
fifteen months and twelve months imprisonment for illegal reentry
and drug possession. As a condition of supervised release, the
district court ordered the deportation of Bowen from the United
States after completion of the term of imprisonment. Bowen
objected to the district court's deportation order and requested
the court to withhold its order to allow INS to determine whether
he should be deported based on his claim of eligibility for asylum
under the Immigration and Nationality Act.
In the other case, a confidential informant informed INS that
Henry Olushola Oboh manufactured fraudulent driver's licenses. On
June 9, 1993, the confidential informant introduced an undercover
INS agent to Oboh. During this meeting, the agent agreed to
purchase two fraudulent driver's licenses from Oboh for $600.
Oboh, equipped with a portable camera, driver's licenses,
laminating machine, and a red drop cloth, took the picture of the
undercover agent and created two North Carolina licenses. A short
time later, law enforcement agents arrested Oboh.
On September 17, 1993, Oboh pleaded guilty to two counts of
producing false identification documents in violation of 18 U.S.C.
§ 1028(a)(1) in the Northern District of Georgia. On January 28,
1994, the district court sentenced Oboh to concurrent terms of
eight months imprisonment for each count. As a condition of
supervised release, the district court ordered that the government
deport Oboh from the United States pursuant to 18 U.S.C. § 3583(d),
that the government deliver Oboh to the duly authorized immigration
official for such deportation, and that Oboh remain in the custody
of the Immigration and Naturalization Service until deported. Oboh
timely objected to the district court's order of deportation
arguing that the PSI did not include a recommendation for
deportation or any information regarding Oboh's immigration status.
With respect to Oboh's immigration status, the presentence report
(PSI) revealed that Oboh was born in Ibadan, Nigeria, on December
2, 1952, and entered the United States in 1974.
Oboh and Bowen filed separate appeals challenging the district
court's authority to deport as a condition of supervised release
under 18 U.S.C. § 3583(d). Oboh also challenges the district
court's determination that he was subject to deportation. This
court on its own motion consolidated these cases for the purpose of
this appeal.
DISCUSSION
In Chukwura, a panel of this court addressed for the first
time in this circuit the question of whether section 3583(d)
authorizes a district court to order the deportation of a defendant
"subject to deportation" as a condition of supervised release.
Chukwura, 5 F.3d at 1420. After reviewing the plain language of
section 3583(d), the Chukwura panel concluded that Congress
intended to grant district courts the authority to deport
defendants "subject to deportation" as a condition of supervised
release. Chukwura, 5 F.3d at 1423. Before the panel, the
government argued that the plain language of the statute should be
followed. Now, appellants, Oboh and Bowen, and the government
contend on appeal that Chukwura was wrongly decided and urge this
en banc court to overrule Chukwura. Recognizing that only this
court sitting en banc or a Supreme Court decision can overrule a
prior decision of this circuit, we agreed to address this issue.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en
banc ).
We begin our analysis as the panel did in Chukwura and
examine the plain language of section 3583(d). Section 3583(d)
provides in pertinent 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) (1988). We
find this language clear and unequivocal. The language states that
a sentencing court may require that a defendant "subject to
deportation" be deported as a condition of supervised release and
order the surrender of the defendant to INS for such deportation.
This court "must presume that a legislature says in a statute what
it means and means in a statute what it says there." Connecticut
Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149,
117 L.Ed.2d 391 (1992). "When the words of a statute are
unambiguous, then, this first canon is also the last: "judicial
inquiry is complete.' " Germain, 503 U.S. at 254, 112 S.Ct. at
1149 (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct.
698, 701-02, 66 L.Ed.2d 633 (1981)); see also United States v.
McLymont, 45 F.3d 400, 401 (11th Cir.) (the plain meaning of a
statute controls unless the language of the statute is ambiguous or
would lead to an absurd result), cert. denied, --- U.S. ----, 115
S.Ct. 1723, 131 L.Ed.2d 581 (1995); Williams v. NEC Corp., 931
F.2d 1493, 1498 (11th Cir.1991) (same). Despite the plain language
of this statute, appellants and the government now argue to the en
banc court that Congress did not intend to grant district courts
authority to deport because the plain meaning of section 3583(d)
would in effect deny defendants the opportunity to challenge a
deportation order under the administrative procedures of the
Immigration and Nationality Act. 8 U.S.C. §§ 1101-1557 (1994). In
support of their argument, they note that other circuits addressing
this issue have held that section 3583(d) merely authorizes the
district court to order the surrender of a defendant to INS for
deportation proceedings in accordance with the Immigration and
Nationality Act. The First, Fourth, and Fifth Circuits have each
accepted arguments similar to the arguments appellants and the
government make in this case. Consequently, we turn our attention
to the decisions in those circuits.
The First Circuit in United States v. Sanchez was the first to
address the issue of whether section 3583(d) authorized district
courts to order deportation as a condition of supervised release.
Sanchez, 923 F.2d 236. In Sanchez, the district court ordered the
defendant upon his release from confinement to " "be deported in
accordance with 18 U.S.C. [§] 3583(d).' " Sanchez, 923 F.2d at
237. On appeal, the defendant argued that the district court
entered an invalid order because a reasonable person could
interpret the order to mean that the government could deport him
without a INS deportation hearing. The First Circuit agreed.
Finding "no indication of a contrary legislative design," the
Sanchez court read section 3583(d) in conjunction with the
provisions of the Immigration and Nationality Act. 1 Sanchez, 923
F.2d at 237.
The Fifth Circuit also addressed this issue in United States
v. Quaye and held that courts lacked authority to order deportation
under section 3583(d). Quaye, 57 F.3d 447. In explaining its
holding, the Quaye court noted that Congress had not granted the
1
The Sanchez court amended the district court's order to
state:
As a condition of supervised release upon the
completion of his term of imprisonment the defendant is
to be surrendered to a duly authorized immigration
official for deportation in accordance with the
established procedures provided by the Immigration and
Naturalization Act, 8 U.S.C. §§ 1101 et seq. As
further condition of supervised release if ordered
deported defendant shall remain outside the United
States.
Sanchez, 923 F.2d at 237.
Judicial Branch authority to deport at anytime prior to the
enactment of section 3583(d). Quaye, 57 F.3d at 449-50. The court
also reasoned that the history of the predecessor of section
3583(d), along with prior absence of congressional authority for
judicial deportation, supported the conclusion that Congress never
intended to alter the traditional allocation of "deportation" power
2
between the Executive and Judicial Branches of government. The
Quaye court noted that section 3583(d)'s predecessor, enacted in
1931,
permitted deportation of an alien prisoner in spite of the
then-current parole rule that demanded that a prisoner remain
within the court jurisdiction. Far from empowering the Parole
Board to usurp the Executive Branch's deportation power, the
1931 Act only provided a means by which an alien could be
deported upon parole.
Quaye, 57 F.3d at 450.3 Based on the similarity of the language in
2
Specifically, the Quaye court stated:
We insist on greater clarity of purpose when a
statute would be read to upset a status quo long in
place. Indeed, here, the history of the statute is a
powerful argument that Congress never intended to alter
this traditional allocation of power between the
Article II and Article III branches of government.
Quaye, 57 F.3d at 450.
3
The 1931 Act, the predecessor to section 3583(d), provides
in pertinent part:
where a Federal prisoner is an alien and subject to
deportation the [B]oard of [P]arole may authorize the
release of such prisoner after he shall have become
eligible for parole on [the] 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 duly authorized immigration official for
deportation.
Quaye, 57 F.3d at 450 (quoting Law of March 2, 1931, ch.
371, 46 Stat. 1469).
the 1931 Act and section 3583(d), the Quaye court found that
section 3583(d) codified the 1931 Act. Quaye, 57 F.3d at 450.
Consequently, it concluded that section 3583(d) only "paves the way
for Executive [B]ranch deportation proceedings" and "does not
permit courts to order deportation alone." Quaye, 57 F.3d at 450.
Even more recently, the Fourth Circuit in United States v.
Xiang interpreted the meaning of section 3583(d) "in the context of
the overall scheme for the deportation of aliens" and held that
district courts lack authority to order deportation as a condition
of supervised release. Xiang, 77 F.3d at 772. In explaining its
holding, the court in Xiang also found that its interpretation of
section 3583(d) adhered to the "division of responsibility that
Congress created between the INS and the court." Xiang, 77 F.3d at
773.
Like other courts that have addressed this issue, we believe
it is instructive to look at the allocation of the power between
the Executive and Judicial Branches with respect to deportation in
determining whether Congress intended to grant courts authority to
deport when it enacted section 3583(d). The First, Fourth, and
Fifth Circuits' analysis, however, fails to recognize important
congressional action that occurred before and after the enactment
of section 3583(d). As previously noted, the Executive Branch,
prior to the enactment of section 3583(d), had exclusive authority
to order the deportation of a convicted alien "subject to
deportation."4 The Executive Branch's authority to deport,
4
Article I, Section 8, Clause 4 of the Constitution grants
Congress exclusive authority to formulate the United States
immigration policy. Congress enacted its first law dealing with
however, was not unlimited. The Judicial Branch, for over
seventy-five years, possessed the power to thwart INS's ability to
deport when the grounds for deportation involved a single
conviction of a crime of moral turpitude which resulted in a
sentence exceeding one year or where the alien subject to
deportation committed two unrelated crimes of moral turpitude. See
United States v. Sanchez-Guzman, 744 F.Supp. 997, 999 n. 5
(E.D.Wash.1990). Under such circumstances, a district court could
issue a judicial recommendation against deportation (JRAD) to INS
to prevent INS from finding an alien deportable or excludable on
the basis of that conviction.5 A JRAD once properly entered with
deportation in 1798 with the passage of the Alien Act of June 25,
1798. Frank L. Auerbach, Immigration Laws of the United States 1
(Bobbs-Merrill Co., Inc.1955). The 1798 Act authorized the
President to deport aliens who he "deemed dangerous" to the
United States. Auerbach, at 2. This Act expired in 1800. From
1798 to the enactment of section 3583(d) in 1987, the Executive
Branch retained exclusive authority to order the deportation of
aliens.
5
In 1940, for example, 8 U.S.C. § 155 provided in pertinent
part:
The provision of this section respecting the
deportation of aliens convicted of a crime involving
moral turpitude shall not apply to one who has been
pardoned, nor shall deportation be made or directed if
the court, or a judge thereof, sentencing such alien
for such crime shall, at the time of imposing judgment
or passing sentence or within thirty days thereafter,
due notice having first been given to representatives
of the state, make a recommendation to the Secretary of
Labor that such alien shall not be deported in
pursuance of this subchapter.
United States ex rel. Santarelli v. Hughes, 116 F.2d 613,
616 n. 15 (3d Cir.1940) (quoting 8 U.S.C.A. § 155). INS at
that time was under the direction of the Labor Department.
On June 14, 1940, Congress transferred all functions and
powers relating to immigration and nationality law to the
Department of Justice. Auerbach, at 21. Title 8 U.S.C. §
1251 subsequently replaced section 155 and limited the
respect to a conviction absolutely barred INS from using that
conviction as a basis for deportation. United States v. Bodre, 948
F.2d 28, 30 (1st Cir.1991). In fact, even appellate courts lacked
authority to reverse the district court's grant of JRAD. Bodre,
948 F.2d at 34.
On November 29, 1990, the Immigration Act of 1990, section
505(a), however, abolished the sentencing judge's power to issue
JRADs. See Immigration Act of 1990, Pub.L. No. 101-649, § 505(a).
Three years prior to the abolishment of JRADs Congress enacted
6
section 3583(d). The plain meaning of section 3583(d) taken
together with the abolishment of JRADs, a longstanding mainstay in
the criminal process, not only persuades us that Congress intended
to enable district courts to order the deportation of defendants
"subject to deportation," but in fact favors such deportation when
either the Executive or Judicial Branch deems it appropriate.
In further support of our conclusion, we note that since our
holding in Chukwura Congress has amended the Immigration and
Nationality Act to give district courts the power to order the
deportation of alien defendants upon the request of the United
States Attorney with concurrence of the Commissioner of INS.7 See
application of JRADs to crimes of moral turpitude not
involving narcotic offenses. See 8 U.S.C. §§ 1251(a)11,
(b)(1988).
6
Section 3583(d) became effective on November 1, 1987.
7
The district court, however, does not have to grant the
government's motion. See 8 U.S.C. § 1252a(d)(1) (providing for
judicial deportation "if the court chooses to exercise such
jurisdiction"). Upon the denial of the United States Attorney's
request, the government may appeal the district court's decision
as well as seek deportation through INS's administrative
proceedings. See 8 U.S.C. § 1252a(d)(3), (4).
8 U.S.C. § 1252a(d) (1994). As a result of section 1252a(d), the
Executive Branch can now effectuate the deportation of a defendant
"subject to deportation" through a judicial rather than an
administrative proceeding if the government meets certain
procedural requirements. See 8 U.S.C. § 1252a(d)(2) (1994).
In response to our holding today, appellants and the
government argue that giving effect to the plain meaning of section
3583(d) renders the Immigration and Nationality Act's procedural
requirements meaningless, asserting that section 3583(d) authorizes
judicial deportation without procedural safeguards. We reject this
argument noting that procedural safeguards already exist in the
sentencing process through appellate review of the conviction and
the sentence. Although we acknowledge that procedural safeguards
exist in the sentencing process, we do not contend that these
safeguards afford defendants recourse from deportation equal to
that available under the Immigration and Nationality Act. This
matter, however, is for Congress and not this court to decide. As
Justice Frankfurter stated in Harisiades v. Shaughnessy:
The conditions of entry of every alien, the particular classes
of aliens that shall be denied entry altogether, basis for
determining such classification, the right to terminate
hospitality to aliens, the grounds on which such determination
shall be based, have been recognized as matters solely for the
responsibility of the Congress and wholly outside the power of
this Court to control.
Harisiades v. Shaughnessy, 342 U.S. 580, 596-97, 72 S.Ct. 512, 522-
23, 96 L.Ed. 586 (1952) (Frankfurter, J., concurring). For this
reason, we interpret section 3583(d) in accordance with its plain
language and reaffirm Chukwura 's holding that section 3583(d)
authorizes district courts to deport defendants "subject to
deportation" as a condition of supervised release. In reaching
this holding, we emphasize that deportation under this provision is
a condition of supervised release and not a sentence. We also note
that defendants "subject to deportation" have no constitutional or
statutory right to remain in this country. Shaughnessy, 342 U.S.
at 586-87, 72 S.Ct. at 517. Their "status within the country ...
is [merely] a matter of permission and tolerance." Shaughnessy,
342 U.S. at 586-87, 72 S.Ct. at 517.
In this appeal, Oboh also argues that the district court
failed to give him notice and an opportunity to present evidence or
8
argument that he is not "subject to deportation." At the
sentencing hearing, the government presented an INS document
revealing that Oboh entered the United States unlawfully.
Although, Oboh objected to the introduction of this document
because the government did not give him notice of the document
prior to the hearing, Oboh did not argue that he legally entered
this country. Moreover, Oboh does not argue that the district
court erred in finding that he unlawfully entered the United
States. We therefore summarily reject Oboh's argument that the
district court's order of deportation denied him due process. The
plain language of section 3583(d) gave Oboh sufficient notice that
the district court could deport him as a condition of supervised
release upon a finding that he was "subject to deportation."
Accordingly, we affirm the district court's decisions ordering the
8
Bowen does not challenge the fact that he is "subject to
deportation" or that he failed to receive adequate notice or an
opportunity to be heard as to his eligibility for relief under
the Immigration and Nationality Act.
deportation of Oboh and Bowen as conditions of supervised release.
AFFIRMED.
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, --- U.S. ----,
115 S.Ct. 102, 130 L.Ed.2d 51 (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 Nationality 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.
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).
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 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. 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
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.
proceedings also conforms with the uniform historical practice of
Congress conferring the authority to institute deportation
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, 73 S.Ct. 625, 628, 97 L.Ed. 956 (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., 509 U.S. 155, 171, 113 S.Ct. 2549, 2559-60, 125
L.Ed.2d 128 (1993).
The reference to deportation in § 3583(d) is contained in a
single sentence that does not expressly carve out an exception to
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
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).
deportation the board of parole may authorize the release 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
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 and 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
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
4
The former 18 U.S.C. § 4212 (1982), as in effect when the
Sentencing Reform Act was passed, provided:
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 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
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.
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.
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, 73 L.Ed.2d 973 (1982); In re Chapman,
116 U.S. 661, 667, 17 S.Ct. 677, 680, 29 L.Ed. 763 (1886) ("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
district courts have the authority to independently order
deportation.7
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.
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.