Criminal Defense of Immigrants


§ 6.25 5. As Condition of Probation

Skip to § 6.

For more text, click "Next Page>"

The probation statutes state that, if no stipulated deportation order has been entered, the court may require deportation as a condition of probation only if, after notice and hearing, the Attorney General demonstrates that the noncitizen is deportable.[1]  The supervised release statute does not authorize the court to enter a removal order:


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 deportation.[2]


Most circuits now hold that the supervised release statute does not authorize the court directly to order the defendant removed from the United States.[3]

                The sentencing court cannot toll the period of supervised release during any period in which the defendant was deported or excluded from the United States, to resume upon re-entry.[4]


[118] 18 U.S.C. § 3563(b).

[119] 18 U.S.C. § 3583(d) (emphasis supplied).

[120] United States v. Sanchez, 923 F.2d 236, 237-38 (1st Cir. 1991); United States v. Mercedes-Mercedes, 851 F.2d 529, 530-31 (1st Cir. 1988); United States v. Quaye, 57 F.3d 447 (5th Cir. 1995); United States v. Tinoso, 327 F.3d 864 (9th Cir. Apr. 25, 2003) (court erred in ordering immediate deportation as a condition of supervised release under18 U.S.C. § 3583(d); it could at most order that the defendant be delivered to the INS for deportation proceedings in accordance with INS regulations); United States v. Castillo Burgos, 501 F.2d 217, 220 (9th Cir.), cert. denied, 419 U.S. 1010 (1974); United States v. Jalilian, 896 F.2d 447, 449 (10th Cir. 1990); United States v. Romeo, 122 F.3d 941 (11th Cir. 1997)(indicating it could no longer follow United States v. Oboh, 92 F.3d 1082 (11th Cir. 1996) (en banc); United States v. Hernandez, 145 F.3d 1433 (11th Cir. 1998); United States v. Romeo, 122 F.3d 941 (11th Cir. 1997); United States v. Giraldo-Prado, 150 F.3d 1328 (11th Cir. 1998); United States v. Alborola-Rodriguez, 153 F.3d 1269 (11th Cir. 1998); United States v. Mejia, 154 F.3d 1297 (11th Cir. 1998); United States v. Ramirez-Perez, 166 F.3d 1106 (11th 1999); but see United States v. Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115 S.Ct. 102 (1994) (supervised release provisions of 18 U.S.C. § 3853(d) authorize federal court to deport noncitizens).

[121] United States v. Balogun, 146 F.3d 141 (2d Cir. 1998).




On Mar. 2, 2009, the California Department of Corrections and Rehabilitation announced it will discharge noncitizens released from prison from parole immediately after they have been deported. Thus, those who return illegally (1600 of 12,000 in 2007) will not be given short (four to eight month) California prison terms for parole violation, but will be turned over to federal authorities for illegal reentry prosecution, saving California about $10 million annually. (See Another effect of this new policy will be to end constructive custody on parole for these inmates, who will lose the opportunity to challenge their convictions via habeas corpus.