Criminal Defense of Immigrants

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).