Immigration Violations—Deportation of Criminal Aliens

All deportable criminal aliens should be deported unless extraordinary circumstances exist. Accordingly, absent such circumstances, Federal prosecutors should seek the deportation of deportable alien defendants in whatever manner is deemed most appropriate in a particular case. Exceptions to this policy must have the written approval of the USA or a designated supervisory AUSA. In cases handled exclusively by one of the Department's litigating divisions, an exception to the policy must have the written approval of the appropriate Assistant Attorney General or Deputy Assistant Attorney General. The means of effecting the deportation of criminal alien defendants include: (1) using stipulated administrative deportation orders in connection with plea agreements; (2) providing for deportation as a condition of supervised release under 18 U.S.C. § 3583(d); and (3) seeking judicial deportation orders pursuant to the judicial deportation statute, formerly 8 U.S.C. § 1252a(d), recodified by Section 374 of the Illegal Immigration Reform and Immigrant Responsibility Act at 8 U.S.C. § 1228(c). See

JM 9-73.500

and the Attorney General's April 28, 1995 Memorandum to All Federal Prosecutors, captioned Deportation of Criminal Aliens.

It should be noted that in the above mentioned memorandum, the Attorney General instructed federal prosecutors that to obtain stipulations to deportation they may agree to recommend a one or two level downward departure from the applicable sentencing range in return for the alien's concession of deportability and agreement to accept a final order of deportation. Such downward departure is justified on the basis that it is conduct not contemplated by the guidelines.