Criminal Defense of Immigrants


§ 6.22 2. Judicial Removal

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Criminal courts generally cannot order a noncitizen deported. [1]  However, in certain circumstances, the INA allows a criminal judge to order a noncitizen removed at sentence without individual proceedings before an immigration judge.[2]  To employ this procedure, the federal prosecutor must, before trial or entry of a plea, file with the court and serve upon the defendant and DHS a notice of intent to request an order of judicial removal.  In addition, at least 30 days before sentence, the prosecutor must file a removal charge containing factual allegations that the defendant is not a U.S. citizen or national and identifying the crime(s) that render the noncitizen removable.  This document requires the concurrence of the DHS which has apparently consistently refused to consent to use of this procedure.[3]  The U.S. Attorney’s Office cannot force the DHS to agree to such an arrangement.[4]


                At sentence, the defendant is entitled to a reasonable opportunity to examine the evidence against him or her, to present evidence on his or her own behalf, and to cross-examine any government witnesses as to issues of removability and relief.  In deciding whether to issue an order of judicial deportation, the court can consider only evidence that would have been admissible in administrative deportation proceedings, but the statute does not limit the information the court may receive for purposes of passing sentence.  If the court determines the noncitizen has presented substantial evidence to establish a prima facie case of eligibility for relief from deportation, the DHS must provide the court with a report concerning the defendant’s eligibility for this relief.[5]


                The statute provides that the appeal of a judicial removal order, or of the denial of such an order, “shall be considered consistent with the requirements” relating to the judicial review of administrative removal orders.[6]  It is unclear whether this appeal must be contained in the same appeal as any appeal from the conviction or sentence, or is a separate appellate proceeding analogous to a petition for review challenging a deportation order issued during the normal course of administrative removal proceedings. 


                Denial of a request for a judicial deportation order, without a decision on the merits, does not prevent the DHS from filing administrative deportation proceedings against the noncitizen on the same ground of deportability or any other.[7]  A decision on the merits, however, denying a judicial deportation order, or finding against the government on alienage, deportability, or relief from deportation, should preclude further administrative removal proceedings based on principles of res judicata and collateral estoppel.  Res judicata applies in removal proceedings.[8]  The doctrine of res judicata barred the United States from removing a noncitizen on the ground that he had been convicted of controlled substance offenses[9] where the government’s prior attempt to remove him for having been convicted of an aggravated felony had failed, and the second attempt was based on the same convictions as the first attempt.[10]  In Murray, the District Court held that ICE cannot recharge on the same facts in different proceedings (i.e., once the first proceeding has ended and the IJ’s decision is final).  If, however, the BIA remands and the proceedings are opened again, ICE has an argument that it can amend the NTA to file new charges, because the same proceedings are still pending.  No circuit has definitively resolved the issue, however.[11]  See § 15.37(B)(7), infra.

                The United States Attorney’s Manual states that: “prosecutors should not seek judicial deportation if the district courts necessarily will become involved in contentious immigration issues.  Accordingly, requests for judicial deportation should be made only if the alien defendant does not have lawful permanent residence, and where the offenses[s] for which the alien is to be sentenced is:


A.      any “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43); or


B.      a serious crime of violence that indisputably involves moral turpitude – i.e., voluntary manslaughter,  kidnapping, sexual abuse, arson, robbery, burglary, or aggravated assault – committed within five years of entry, but which does not amount to an “aggravated felony,” since the anticipated sentence of imprisonment, under the sentencing guidelines, will be more than one year, but less than five years; or


C.      two or more serious crimes of violence that indisputably involve moral turpitude – i.e., voluntary manslaughter, kidnapping, sexual abuse, arson, robbery, burglary, or aggravated assault – not arising out of a single scheme, committed any time after entry, but which do not amount to “aggravated felonies,” since the anticipated sentence of imprisonment, under the sentencing guidelines, will be more than one year, but less than five years.[12] 


The Manual recommends against seeking a judicial deportation order “in situations where the courts may be required to define the limits of that term [‘crime of moral turpitude’],” or “if the alien has any colorable claim for relief from deportation.” [13]

[91] See United States v. Ramirez-Perez, 166 F.3d 1106 (11th Cir. 1999); United States v. Mejia, 154 F.3d 1297 (11th Cir. 1998) (8 U.S.C. § 1229a(a)(3), enacted as part of IIRAIRA, divested district courts of authority to order deportation under 18 U.S.C. § 3583(d) and is applicable to cases pending on the effective date of IIRAIRA); United States v. Romeo, 122 F.3d 941 (11th Cir. 1997) (holding that as a consequence of INA § 240(a)(3), 8 U.S.C. § 1229a(a)(3), as amended by IIRAIRA, district courts can order deportation only pursuant to the procedure set forth in INA § 238(c)(1), 8 U.S.C. § 1228(c)(1); 18 U.S.C. § 3538(d) only authorizes the district court to order that a defendant be surrendered to immigration authorities for removal proceedings); United States v. Shaw Yan Xiang, 77 F.3d 771 (4th Cir. 1996) (holding that 18 U.S.C. § 3538(d) does not authorize a court to enter a direct order of deportation); United States v. Quaye, 57 F.3d 447 (5th Cir. 1995); United States v. Sanchez, 923 F.2d 236 (1st Cir. 1991); United States v. Jalilian, 896 F.2d 447 (10th Cir. 1990); United States v. Castillo-Burgos, 501 F.2d 217 (9th Cir. 1974), overruled on other grounds by United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992).

[92] INA § 238(c)(1), 8 U.S.C. § 1228(c)(1).  Through a technical error, both this provision and the “presumption of deportability” provision were codified under INA § 238(c), 8 U.S.C. § 1228(c).

[93] INA § 238(c)(2), 8 U.S.C. § 1228(c)(2).  See also See U.S ATTORNEY’S MANUAL, Title 9, Criminal Resource Manual, § 1930, Contested Judicial Deportation.

[94] Assistant United States Attorneys lack the authority to bind immigration authorities unless the immigration authorities give their written consent and otherwise comply with 28 C.F.R. § 0.197.

[95] Ibid.

[96] INA § 238(c)(3), 8 U.S.C. 1228(c)(3).

[97] INA § 238(c)(4), 8 U.S.C. 1228(c)(4).

[98] Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987) (granting EAJA funds to respondent where ICE’s charges were terminated, refiled, and terminated again after respondent filed mandamus for order requiring termination on basis of res judicata); Medina v. INS, 993 F.2d 499, 503-504 (5th Cir. 1993) (explaining why res judicata is meant to preclude subsequent actions precisely in situations where the INS is “unhappy now with the outcome of the initial proceedings” and wants to relitigate legal issues it had the opportunity to reach in the prior proceeding); Duvall v. Gonzales, 436 F.3d 382 (3d Cir. 2006) (ruling that preclusion principles apply to immigration proceedings).  See also Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. Dec. 6, 2006) (DHS was not barred by res judicata from asserting additional charges after the BIA held that underlying conviction was not an aggravated felony because the BIA decision was not a final judgment rendered on the merits in a separate action).

[99] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[100] Murray v. Ashcroft, 321 F. Supp. 2d 385 (D.Conn. 2004)(ICE cannot recharge a noncitizen with removal on the same facts in different removal proceedings, once the first proceeding has ended and the IJ’s decision is final).

[101] See Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d Cir. 2004) (explaining the difficulty in determining whether res judicata may be applied to bar the government from lodging additional grounds of removal because of the strong resemblance between filing of criminal charges and lodging of removal charges). 

[102] U.S Attorney’s Manual, Title 9, Criminal Resource Manual, § 1928 – Implementing Judicial Deportation – General Concerns.

[103] Ibid.