No. 95-8736 In the Supreme Court of the United States OCTOBER TERM, 1996 LARRY OSA OGBOMON, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General THOMAS M. GANNON Attorney Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether 18 U.S.C. 3583(d) authorizes a district court to order a criminal defendant deported, as a condition of supervised release, without recourse to the standards and procedures for determining deport- ability and relief from deportation under the Immigra- tion and Nationality Act, 8 U.S.C. 1101 et seq., and implementing regulations. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statutory provisions involved . . . . 1 Statement . . . . 2 Summary of argument . . . . 11 Argument: Section 3583(d) of Title 18 does not authorize a district court to order the deportation of an alien defendant as a condition of supervised release . . . . 13 A. The text, purpose, and history of Section 3583(d) establish that a district court may provide for deportation of an alien defendant by the Attor- ney General if the alien is subject to deportation under the Immigration and Nationality Act, notwithstanding other terms of supervised release, but the district court is not authorized to order the deportation of an alien . . . . 14 B. The determination whether an alien defendant is subject to deportation for purposes of Section 3583(d) must be made under the Immigration and Nationality Act . . . . 23 Conclusion . . . . 39 Appendix . . . . 1a TABLE OF AUTHORITIES Cases: Chatima v. United States, cert denied, 115 S. Ct. 352 (1994) . . . . 5 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984) . . . . 26 Delgado-Chavez v. INS, 765 F.2d 868 (9th Cir. 1985) . . . . 33 Giambanco v. INS, 531 F.2d 141 (3d Cir. 1976) . . . . 33 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases -continued: Page Gonzalez, In re, 16 I. & N. Dec. 134 (BIA 1977) . . . . 33 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) . . . . 28 Hassan v. INS, 66 F.3d 266 (10th Cir. 1995) . . . . 33 Heckler v. Chancy, 470 U.S. 821 (1985) . . . . 29 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) . . . . 26 INS v. Jong Ha Wang, 450 U.S. 139 (1981) . . . . 26 INS v. Rios-Pineda, 471 U.S. 444 (1985) . . . . 26 INS v. Yueh-Shaio Yang, No. 95-938 (Nov. 13, 1996) . . . . 26, 27 Jay v. Boyd, 351 U.S. 345 (1956) . . . . 27 Jew Ten v. INS, 307 F.2d 832 (9th Cir. 1962), cert. denied, 371 U.S. 968 (1963) . . . . 32 Morrison v. Olson, 487 U.S. 654 (1988) . . . . 29 Oviawe v. INS, 853 F.2d 1428 (7th Cir. 1988) . . . . 33 Secchi v. U.S. Bureau of Immigration, 58 F. Supp. 569 (M.D. Pa. 1945) . . . . 21-22 Shaughnessy v. Mezei, 345 U.S. 206 (1953) . . . . 31 United States v. Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115 U.S. 102 (1994) . . . . 4 United States v. George, 534 F. Supp. 570 (S.D.N.Y. 1982) . . . . 32 United States v. Kassar, 47 F.3d 562 (2d Cir. 1995) . . . . 13, 31 United States v. Oboh: 65 F.3d 900, vacated, 70 F.3d 87 (1995), on reh'g en banc, 92 F.3d 1082 (11th Cir. 1996), petitions for cert. pending, Nos. 96-6653 & 96-6658 . . . . 8 70 F.3d 87 (1995), on reh'g en banc, 92 F.3d 1082 (11th Cir. 1996), petitions for cert. pending, Nos. 96-6653 & 96-6658 . . . . 8 92 F.3d 1082 (11th Cir. 1996), petitions for cert. pending, Nos. 96-6653 & 96-6658 . . . . 8, 9, 10, 11, 17, 18, 20, 22-23, 30, 31 United States v. Ogbomon, No. CR96-PT-124-NE (N.D. Ala. Aug. 29, 1996) . . . . 7 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page United States v, Phommachanh, 91 F.3d 1383 (10th Cir. 1996) . . . . 13, 17, 24, 30, 31, 34, 37 United States v. Quaye, 57 F.3d 447 (5th Cir. 1995) . . . . passim United States v. Quintana, 914 F.2d 1409 (10th Cir. 1990) . . . . 32 United States v. Ramirez, 948 F.2d 66 (1st Cir. 1991) . . . . 13 United States v. Sanchez, 923 F.2d 236 (1st Cir. 1991) . . . . 5, 8, 13, 24, 30 United States v. Xiang, 77 F.3d 771 (4th Cir. 1996) . . . . 8, 11, 13, 17, 30, 37 United States ex rel. Knauff v. Shaughnessy, 358 U.S. 537 (1950) . . . . 28 Statutes and regulations: Act of Mar. 2, 1931, ch. 371, 46 Stat. 1469 . . . . 21 Act of June 25, 1948, ch. 645, 1, 62 Stat. 854 . . . . 22 Act of Oct. 11, 1996, Pub. L. No. 104-302, 2, 110 Stat. 3657 . . . . 31 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 7347, 102 Stat. 4471 . . . . 34 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 431-443,110 Stat. 1273-1281 . . . . 2 438(a), 110 Stat. 1275 . . . . 20 Illegal Immigration Reform and Immigrant Responsi- bility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. _ (reproduced at 138 Cong. Rec. H11,787: H11,833 (daily ed. Sept. 28, 1996)) . . . . 2 305(a)(3) . . . . 20 306 . . . . 20 306(a) . . . . 31 306(c)(1) . . . . 31 309 . . . . 3 309(a) . . . . 31 374(a) . . . . 34 ---------------------------------------- Page Break ---------------------------------------- VI Statutes and regulations-Continued: Page 374(a)(3) . . . . 37 374(b)(3) . . . . 38 Immigration and Nationality Act, 8 U.S.C. 1101 et seq . . . . 2, 5, 11, 13 103(a), 8 U.S.C. 1103(a) . . . . 25 158, 8 U.S.C. 1158 . . . . 27 212(c), 8 U.S.C. 1182(c) . . . . 27 212(d)(5), 8 U.S.C. 1182(d)(5) . . . . 28 238 (to be codified at 8 U.S.C. 1228) . . . . 37, 38 238(c) (to be codified 8 U.S.C. 1228(c)) . . . . 33, 34 238(c)(5) (to be codified at 8 U.S.C. 1228(c)(5)) 241-244, 8 U.S.C. 1251-1254 . . . . 24 241, 8 U.S.C. 1251 . . . . 26 241(a), 8 U.S.C. 1251(a) . . . . 32 241(a)(1)(E) (iii), 8 U.S.C. 1251(a)(1)(E)(iii) . . . . 27 241(a)(1)(H), 8 U.S.C. 1251(a)(1)(H) . . . . 27 241(a)(2), 8 U.S.C. 1251(a)(2) . . . . 26 241(a)(2)(A), 8 U.S.C. 1251(a)(2)(A) . . . . 34 241(a)(4), 8 U.S.C. 1251(a)(4) (1952) . . . . 32 241(a)(4) (to be codified at 8 U.S.C. 1251(a)(4)) . . . . 20 241(b), 8 U.S.C. 1251(b) (1952) . . . . 32, 33 241(b)(2), 8 U.S.C. 1251(b)(2) (1988) . . . . 8 241(c), 8 U.S.C. 1251(c) . . . . 27 242, 8 U.S.C. 1252 . . . . 20, 25 242(b), 8 U.S.C. 1252(b) . . . . 25 242(b)(1)-(4), 8 U.S.C. 1252(b)(1)-(4) . . . . 25 242(c), 8 U.S.C. 1252(c) . . . . 28 242(h), 8 U.S.C. 1252(h) . . . . 19, 20 242(h)(2), 8 U.S.C. 1252(h)(2) . . . . 20 242A, 8 U.S.C. 1252a (1988) . . . . 34 242A, 8 U.S.C. 1252a . . . . 33, 34, 37 242A(a)(1), 8 U.S.C. 1252a(a)(1) (1988) . . . . 34 242A(d), 8 U.S.C. 1252a(d) . . . . 9, 11, 24, 25, 33, 36, 37 242A(d)(1), 8 U.S.C. 1252a(d)(1) . . . . 33-34, 35 242A(d)(2)(A), 8 U.S.C. 1252a(d)(2)(A) . . . . 35 242A(d)(2)(B), 8 U.S.C. 1252a(d)(2)(B) . . . . 35 242A(d)(2)(C), 8 U.S.C. 1252a(d)(2)(C) . . . . 35 ---------------------------------------- Page Break ---------------------------------------- VII Statutes and regulations-Continued: Page 242A(d)(2)(D)(i), 8 U.S.C. 1252a(d)(2)(D)(i) . . . . 35 242A(d)(2)(D)(ii), 8 U.S.C. 1252a(d)(2)(D)(ii) . . . . 36 242A(d)(2)(D)(iv), 8 U.S.C. 1252a(d)(2)(D)(iv) . . . . 36 242A(d)(3)(A), 8 U.S.C. 1252a(d)(3)(A) . . . . 36 242A(d)(4), 8 U.S.C. 1252a(d)(4) . . . . 36 242B, 8 U.S.C. 1252b . . . . 25 243(h), 8 U.S.C. 1253(h) . . . . 27 243(h)(2)(B), 8 U.S.C. 1253(h)(2)(B) . . . . 27 244(a)(2), 8 U.S.C. 1254(a)(2) . . . . 27 276, 8 U.S.C. 1326 . . . . 2, 3, 6, 23 Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 224(a), 108 Stat. 4322-4324 . . . . 2, 34 Parole Commission and Reorganization Act, Pub. L. No. 94-233, 2, 90 Stat. 227 (1976) . . . . 22 Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, Ch. II, 98 Stat. 1987 . . . . 22 212(a)(2), 98 Stat. 1999 . . . . 19, 22 218(a)(5), 98 Stat. 2027 . . . . 22 220(b), 98 Stat. 2028 . . . . 19 235, 98 Stat. 2031 . . . . 22 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 130001-130010, 108 Stat. 2023-2031 . . . . 2 130004, 108 Stat. 2026-2028 . . . . 34 8 U.S.C. 155 (1940) . . . . 8, 31, 32, 33 18 U.S.C. 716 (1925) . . . . 21 18 U.S.C. 1344 . . . . 7 18 U.S.C. 3563(b)(21) . . . . 38 18 U.S.C. 3583 . . . . 1, 14, 15, 1a 18 U.S.C. 3583(a) . . . . 14, 1a 18 U.S.C. 3583(b) . . . . 15, 1a 18 U.S.C. 3583(c) . . . . 15 18 U.S.C. 3583(d) . . . . passim, 1a 18 U.S.C. 3583(e) . . . . 14, 20 18 U.S.C. 3583(e)(1) . . . . 14 18 U.S.C. 3583(e)(2) . . . . 14 18 U.S.C. 3583(e)(3) . . . . 14, 23 ---------------------------------------- Page Break ---------------------------------------- VIII Statutes and regulations-Continued: Page 18 U.S.C. 3601 . . . . 14 18 U.S.C. 3603(2) . . . . 18 18 U.S.C. 3603(3) . . . . 18 18 U.S.C. 3603(5) . . . . 18 18 U.S.C. 3603(7) . . . . 18 18 U.S.C. 4204 (1952) . . . . 22 18 U.S.C. 4212 (1976) . . . . 22 8 C.F.R.: Pt. 208 . . . . 26 Pt. 212: Section 212.14 . . . . 28 Pt. 242 . . . . 26 Pt. 243 . . . . 26 Pt. 244 . . . . 26 Pt. 245 . . . . 26 Miscellaneous: 138 Cong. Rec. (daily ed. Sept. 28, 1996): pp. H11,787-H11,833 . . . . 2 p. H11,801 . . . . 20 p. H11,803 . . . . 31 pp. H11,803-H11,804 . . . . 20 p. H11,804 . . . . 31 p. H11,808 . . . . 3 p. H11,813-H11,814 . . . . 34, 38 p. H11,814 . . . . 38 H.R. Rep. No. 1035, 71st Cong., 2d Sess. (1930) . . . . 21 S. Rep. No. 1733, 71st Cong., 3d Sess. (1931) . . . . 21 2B Norman J. Singer, Sutherland Statutory Con- struction (5th ed. 1992) . . . . 37 The Oxford English Dictionary (2d ed. 1989): vol. 10 . . . . 17 vol. 12 . . . . 17 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 95-8736 LARRY OSA OGBOMON, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals (J.A. 15-16) is unpublished, but the judgment is noted at 55 F.3d 638 (Table). JURISDICTION The judgment of the court of appeals was entered on May 5, 1995. A petition for rehearing was denied on January 22, 1996. J.A. 17-18. The petition for a writ of certiorari was filed on April 19, 1996. The jurisdic- tion of this Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Pertinent provisions of Section 3583 of Title 18 are reprinted at App., infra, 1a-2a. (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following a plea of guilty in the United States District Court for the Northern District of Georgia, petitioner was convicted of unlawfully entering the United States, in violation of 8 U.S.C. 1326. The dis- trict court sentenced petitioner to 16 months' impris- onment, to be followed by a three-year term of super- vised release which included, as a special condition, that petitioner be deported. J.A. 10-14. The court of appeals affirmed, finding the condition authorized under 18 U.S.C. 3583(d). J.A. 15-16. 1. ___________________(footnotes) 1 This case involves the interaction of Section 3583(d) and the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. Congress has amended the INA in significant respects since the district court entered judgment in this case on April 28, 1994. On September 13, 1994, Congress enacted the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 5$130001-130010, 108 Stat. 2023-2031, which included, inter alia, a provision for the expeditious deportation of certain criminal aliens. On October 24, 1994, Congress enacted the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 224(a), 108 Stat. 4322-4324, which added, inter alia, a provision for judicial deportation in certain cases, upon the request of the United States Attorney and the concurrence of the Commissioner of the INS, as discussed at pp. 33-37, infra. On April 24, 1996, Congress enacted the Anti- terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 431-443, 110 Stat. 1273-1281, which amended, inter alia, provisions of the INA to limit judicial review of final administrative orders of deportation in cases in- volving aliens convicted of certain offenses. Most recently, on September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, Div. C, 110 Stat. (reproduced at 138 Cong. Rec. H11,787-H11,833 (daily ed. Sept. 28, 1996)), which provides, inter alia, for elimination of judicial review of many of the determinations made by the Attorney General during ---------------------------------------- Page Break ---------------------------------------- 3 1. Petitioner, a Nigerian citizen, previously had been convicted of bank fraud, forgery, theft by taking, and bad check offenses, and had been deported to Nigeria on November 20, 1991. See Oct. 19, 1993, Grim. Complaint; Gov't C.A. Br. 2, 8. On October 12, 1993, petitioner was found in the United States and, on November 16, 1993, was indicted on one count of having entered the United States, without consent of the Attorney General, after having been previously deported, in violation of 8 U.S.C. 1326, See Oct. 19, 1993, Crim. Complaint; J.A. 2. On January 18, 1994, he entered a plea of guilty. J.A. 15; Gov't C.A. Br. 2. In the presentence report (PSR), the probation officer included the following condition of supervised release: Upon completion of the imprisonment portion of the sentence, the defendant shall be deported from the United States pursuant to 18 U.S.C. 3583(d). He/she shall be delivered to a duly-authorized Im- migration official for such deportation and shall be detained in the custody of the Immigration and ___________________(footnotes) deportation proceedings and, as discussed at pp. 37-38, infra, for judicial deportation orders based on stipulations and as a condition of probation, upon concurrence of the Attorney General or her delegates. Most of the relevant portions of the IIRAIRA do not become effective until April 1, 1997, see IIRAIRA 309 (reproduced at 138 Cong. Rec. H11,808 (daily ed. Sept. 28, 1996)). Unless otherwise indicated, all references to the INA are to the version in effect at the time of peti- tioner's sentencing. For purposes of this brief, we use the pre- IIRAIRA terminology that governed the proceedings below, and our references to administrative proceedings and judicial review are to the pre-IIRAIRA procedures unless otherwise indicated. ---------------------------------------- Page Break ---------------------------------------- 4 Naturalization Service until deported from the United States. Gov't C.A. Br. 3; PSR 10 (Worksheet D). Petitioner did not object to that portion of the PSR. PSR 12. The district court sentenced petitioner to 16 months' imprisonment, to be followed by three years' supervised release. J.A. 11-12. In accordance with the probation officer's recommendation, the court di- rected, as a condition of supervised release, that peti- tioner "be deported from the United States pursuant to 18 United States Code, Section 3583(d)." J.A. 9. The court ordered that petitioner "shall depart the United States when ordered to do so by the Immi- gration and Naturalization Service * * * [and] shall take no action to appeal or resist any order of deportation by the Immigration and Naturalization Service and if deported, shall not reenter the United States during the term of supervised release." J.A. 12. 2. Petitioner appealed, contending, inter alia, that the district court's order of deportation, as a con- dition of supervised release under 18 U.S.C. 3583(d), exceeded the court's authority. Pet. C.A. Br. 2, 7-15. The United States and the court of appeals similarly interpreted the order as an order of judicial deporta- tion under Section 3583(d). See Gov't C.A. Br. 2; J.A. 15-16. The court of appeals affirmed, based on its earlier ruling in United States v. Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115 U.S. 102 (1994), that a district court is authorized by Section 3583(d) to order deportation as a condition of supervised release. J.A. 15-16. In its brief on appeal, the government informed the court that it had reconsidered its inter- ---------------------------------------- Page Break ---------------------------------------- 5 pretation of Section 3583(d) and had concluded that Section 3583(d) does not authorize a sentencing court to order an alien defendant deported without afford- ing him an opportunity to invoke the standards and procedures of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. See Gov't C.A. Br. 5-7. 2. The court of appeals acknowledged the change in the government's position, but concluded that it was not free to overrule Chukwura and affirmed petitioner's sentence. J.A. 16. 3. ___________________(footnotes) 2 Initially, in the Chukwura case in the court of appeals, the United States had taken the position that Section 3583(d) authorizes a district court to order an alien defendant deported without resort to the standards and procedures of the INA. The United States had taken the contrary position, however, in the First Circuit in United States v. Sanchez, 923 F.2d 236 (1991), and had argued that Section 3583(d) does not authorize a district court to order the deportation of an alien defendant. The courts of appeals in each instance agreed with the view advocated by the United States. In light of the inconsistent positions taken by the United States in the two circuits, the conflicting circuit rulings that resulted, and the responsibilities of the Attorney General and the Immigration and Naturaliza- tion Service in administering the INA, the United States re- examined its views in responding to the petition for a writ of certiorari in Chukwura. We concluded that, contrary to the position adopted by the Eleventh Circuit, Section 3583(d) does not authorize a district court to order the actual deportation of an alien in a manner that bypasses the deportation proceedings established by the INA. This Court ultimately denied review in Chukwura and in another case from the Eleventh Circuit in which the petitioner had raised the same issue in a petition for a writ of certiorari before judgment, Chatima v. United States, cert. denied, 115 S. Ct. 352 (1994) (No. 94-5633). 3 Petitioner had also contended that the district court had erred in failing to make findings of fact as to his reportability and in failing to consider the possibility of suspension of depor- tation. The court of appeals declined to address those issues ---------------------------------------- Page Break ---------------------------------------- 6 3. The court of appeals denied petitioner's petition for rehearing and suggestion for rehearing en bane on January 22,1996. J.A. 17-18. Petitioner had completed service of his term of imprisonment for his 1994 conviction under Section 1326 in December 1994. At that point, INS conducted proceedings concerning his deportation. 4. On April 10, 1996, however, after he was arrested on criminal charges in another district (see note 5, infra), the district court in the instant case entered. an order revoking petitioner's supervised release. The order does not recite the grounds for revocation. The pro- bation officer's petition for revocation cited four grounds, none of which was the fact that petitioner had not been deported. The court imposed a sentence of 12 months' imprisonment upon revocation, but it did not impose a new term of supervised release. The order of the district court revoking petition- er's supervised release and ordering his imprison- ment raises a question of mootness. It is unclear whether the district court contemplated. that peti- tioner would be deported under the original sentence imposing deportation as a condition of supervised release, now that petitioner's supervised release has been revoked. Accordingly, it is not clear whether ___________________(footnotes) because petitioner had not raised them in the district court. See J.A. 16 n.1. 4 Upon completion of his term of imprisonment, petitioner was surrendered to the INS pursuant to an INS detainer and released on bond. On June 5, 1995, an immigration judge en- tered a warrant of deportation ordering the INS to arrest and deport petitioner. On February 1, 1996, an immigration judge denied petitioner's motion to reopen his deportation proceed- ings. On March 6, 1996, petitioner was arrested pursuant to the warrant of deportation. ---------------------------------------- Page Break ---------------------------------------- 7 a successful challenge to the deportation condition would have any effect on petitioner's sentence. More- over, the Eleventh Circuit does not appear to have addressed the issue of whether an order of judicial deportation under its interpretation of Section 3583(d) may be carried out following the revocation of a de- fendant's supervised release and the completion of the term of his imprisonment imposed upon revocation, where, as here, there is no new term of supervised release. 5. 4. a. Meanwhile, on November 13, 1995, the court of appeals granted rehearing en bane in consolidated appeals in which two alien defendants had raised the same challenge to the authority of a district court to enter a judicial deportation order as a condition of supervised release under Section 3583(d), and had urged the court of appeals to overrule Chukwura. ___________________(footnotes) 5 Further, on March 18, 1996, a criminal complaint was filed in the United States District Court for the Northern District of Alabama, charging petitioner with having commit- ted bank fraud, in violation of 18 U.S.C. 1344. A magistrate judge of that court issued a warrant for petitioner's arrest which was executed on March 21, 1996. After his indictment on a variety of federal charges, petitioner pleaded guilty to all counts and was sentenced to 24 months' imprisonment, to be followed by five years' supervised release. One of the con- ditions of his supervised release is that petitioner "shall be deported immediately upon completion of the term of im- prisonment and shall remain outside the United States during the period of supervised release, in accordance with 18 USC 3583(d) and with U.S. W. Chukwura, 5 F.3d 1420 (11th Cir. 1993). To that end, [petitioner] shall be remanded to the cus- tody of the U.S. Marshal Service for delivery to an authorized Immigration and Naturalization Service official for execution of the deportation order." United States v. Ogbomon, No. CR 96-PT-124-NE (N.D. Ala. Aug. 29, 1996), at 3. That order is not before this Court. ---------------------------------------- Page Break ---------------------------------------- 8 See United States v. Oboh, 70 F.3d 87 (11th Cir. 1995) (vacating the panel opinion in United States v. Oboh, 65 F.3d 900 (11th Cir. 1995), and ordering that the case be reheard by the court en banc). On rehearing en banc in Oboh, the court of appeals, by a 7-5 vote, reaffirmed Chukwura, despite contrary rulings by three other courts of appeals. United States v. Oboh, 92 F.3d 1082, 1083 (11th Cir. 1996) (acknowledging conflicting rulings in United States v. Sanchez, 923 F.2d 236 (lst Cir. 1991); United States v. Xiang, 77 F.3d 771 (4th Cir. 1996); and United States v. Quaye, 57 F.3d 447 (5th Cir. 1995)), petitions for cert. pending, Nos. 96-6653 & 96-6658 (filed Nov. 6, 1996). The Oboh majority found that the language of Section 3583(d) supported its conclusion that a dis- trict court is authorized to order an alien's deporta- tion as a condition of supervised release. 92 F.3d at 1084. It noted that other circuits had rejected that conclusion after interpreting Section 3583(d) in light of the traditional allocation of power between the Executive and Judicial Branches, which grants the Executive sole authority to make deportation deci- sions. The Oboh majority viewed that allocation of power differently, however, relying on an earlier pro- vision of the INA (former 8 U.S.C. 155 (1940); 8 U.S.C. 1251(b)(2) (1988)) that authorized a sentencing court to issue a judicial recommendation against deporta- tion to bar the INS from using the conviction under- lying that particular criminal sentence as a basis for deportation. 92 F.3d at 1086. The court viewed Con- gress's abolition of the courts' recommendation au- thority in 1990 and its enactment of Section 3583(d) a few years earlier to indicate not only that "Congress intended to enable district courts to order the de- portation of defendants `subject to deportation: but ---------------------------------------- Page Break ---------------------------------------- 9 [that Congress] in fact favors such deportation when either the Executive or Judicial Branch deems it appropriate." Id. at 1087. The Oboh majority found further support in Con- gress's subsequent enactment of Section 242A(d) of the INA, 8 U.S.C. 1252a(d), which authorizes district courts to order the deportation of alien defendants upon the request of the United States Attorney and the concurrence of the Commissioner of the INS. 92 F.3d at 1087. The court rejected the defendants' argu- ments that judicial deportation under Section 3583(d) did not afford them the procedural safeguards estab- lished in the INA. The court noted that procedural safeguards exist in the sentencing process through appellate review and that, although greater proce- dural safeguards are available under the INA, that was a matter for Congress, not the court, to decide. Ibid. The court of appeals rejected appellant Oboh's argument that the district court's deportation order had denied him due process because he had not been given adequate notice of the deportation determina- tion and had not been afforded an opportunity to present evidence or to argue that he is not subject to deportation. 92 F.3d at 1087-1088. The court found that the language of Section 3583(d) gave Oboh suffi- cient notice that the district court could deport him as a condition of supervised release. Id. at 1088. The court also found the evidence sufficient to establish that Oboh was subject to deportation, in that the United States had introduced at the sentencing hear- ing an INS document that revealed that Oboh had entered the United States unlawfully. Id. at 1087- 1088. The court noted that the appellant in the other ---------------------------------------- Page Break ---------------------------------------- 10 case, which had been consolidated for purposes of rehearing en banc, did not challenge the fact that he was subject to deportation or the notice and opportu- nity provided him regarding relief from deportation under the INA. Id. at 1087 n.8. b. Five members of the court of appeals dissented, agreeing with the First, Fourth and Fifth Circuits that Section 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 INA. 92 F.3d at 1088 (Barkett, J., dissent- ing, joined by Kravitch, Anderson, Birch, and Carnes JJ.). The dissent emphasized that Section 3583(d) authorizes district courts to "provide" that alien de- fendants be deported as a condition of supervised release, but does not authorize district courts to "order" deportation. Ibid. Construing that language to permit, but not to order, deportation accords with the overall purpose of Section 3583(d), because it clarifies that a court may allow the INS to deport an alien notwithstanding the fact that he is serving a term of supervised release. Id. at 1089. The dissent also explained that its interpretation "conforms with the uniform historical practice of Congress confer- ring on Executive Branch officials the authority to institute deportation proceedings against an alien." Ibid. Noting that Congress has vested immigration authority in the Attorney General and has estab- lished the administrative procedures, that govern her deportation determinations, the court concluded that the single sentence in Section 3583(d) referring to deportation did not "carve out an exception to the Attorney General's authority over immigration matters." Ibid. ---------------------------------------- Page Break ---------------------------------------- 11 The dissent viewed its interpretation to be consis- tent with the background of Section 3583(d) and its predecessor statutes which did not authorize judicial orders of deportation. It also noted that courts had in many contexts held that district courts historically have lacked the authority to order the deportation of a criminal defendant, and it found its reading of Section 3583(d) to be consistent with that body of authority. 92 F.3d at 1090-1091. Finally, the dissent relied on Congress's subsequent enactment of Section 1252a(d), which authorizes judicial deportation of aliens in cases involving certain serious offenses, but only upon the request of the United States Attorney and with the concurrence of the INS. The dissent con- cluded that, in light of that amendment, to read a general power of judicial deportation into Section 3583(d) would produce an absurd result: aliens con- victed of less serious crimes could be deported by judicial order without the procedural safeguards af- forded by Section 1252a(d) to aliens convicted of more serious crimes. Id. at 1091-1092 (citing, inter alia, United States v. Quaye, 57 F.3d at 450; United States v. Xiang, 77 F.3d at 773). SUMMARY OF ARGUMENT Section 3583(d) of Title 18 does not authorize a district court to order an alien defendant deported as a condition of supervised release without recourse to the standards and procedures for deportation de- terminations established by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and its implementing regulations. Rather, Section 3583(d) authorizes a sentencing court to "provide" for de- portation, if the alien is subject to it, i.e., to permit a ---------------------------------------- Page Break ---------------------------------------- 12 determination by the Attorney General whether an alien defendant is subject to deportation under the INA and to order an alien surrendered to immigration officials for that purpose and for deportation. That interpretation of Section 3583(d), adopted by the other four circuits that have addressed the question, is con- sistent with the text, purpose, history, and structure of Section 3583(d). The court of appeals' view that Section 3583(d) authorizes a district court to enter a deportation or- der as a condition of supervised release runs counter to Congress's long-standing practice of vesting sole authority for immigration matters, including depor- tation determinations, in the Attorney General and her delegates. It also is inconsistent with the struc- ture of Section 3583(d), which authorizes a district court to take certain actions with regard to de- portation only "[i]f an alien defendant is subject to deportation." 18 U.S.C. 3583(d). Whether an alien is subject to deportation can be answered only under the INA, in which Congress has identified what classes of persons are reportable, what circumstances may warrant relief from deportation, and what procedures the Attorney General must follow in making those determinations. Consequently, Section 3583(d) and the INA must be construed together so as to give effect to both. Read against that backdrop, the single sentence in Section 3583(d) concerning aliens subject to deportation does not sanction the entry of judicial deportation orders that bypass the INA proceedings administered by the Attorney General and the stat- utory standards governing deportability and relief from deportation. Recent statutory enactments re- garding judicial deportation orders confirm that, ---------------------------------------- Page Break ---------------------------------------- 13 when Congress intends to grant district courts ju- risdiction to enter judicial deportation orders, it does so explicitly and provides for a means by which the approval of the Attorney General, or her delegates, is required to obtain such a deportation order. ARGUMENT SECTION 3583(d) OF TITLE 18 DOES NOT AUTHORIZE A DISTRICT COURT TO ORDER THE DEPORTATION OF AN ALIEN DEFENDANT AS A CONDITION OF SUPERVISED RELEASE The court of appeals interpreted Section 3583(d) to permit a district court to order an alien defen- dant deported without reliance on the standards and procedures of the Immigration and. Nationality Act (INA), 8 U.S.C. 1101 et seq. The other four circuits that have considered the question have disagreed with the Eleventh Circuit's interpretation and have held that Section 3583(d) does not give a district court such authority, but does authorize a court "to impose as a condition of supervised release that a defendant be delivered to the INS for deportation proceed- ings consistent with the Immigration and Nationality Act (INA), 8 U.S.C. 1101-1524." United States v. Phommachanh, 91 F.3d 1383, 1385 (10th Cir. 1996); accord United States v. Xiang, 77 F.3d 771, 772 (4th Cir. 1996); United States v. Quaye, 57 F.3d 447, 449- 451 (5th Cir. 1995); United States v. Ramirez, 948 F.2d 66, 68 (1st Cir. 1991); United States v. Sanchez, 923 F.2d 236, 237 (1st Cir. 1991); see also United States v. Kassar, 47 F.3d 562,568 (2d Cir. 1995). Those other circuits are correct. ---------------------------------------- Page Break ---------------------------------------- 14 A. The Text, Purpose, And History Of Section 3583(d) Establish That A District Court May Provide For Deportation Of An Alien Defendant By The Attor- ney General If The Alien Is Subject To Deportation Under The Immigration And Nationality Act, Not- withstanding Other Terms Of Supervised Release, But The District Court Is Not Authorized To Order The Deportation Of An Alien 1. Section 3583 of Title 18 authorizes, and in some instances mandates, federal district courts to include, as a part of a criminal defendant's sentence to a term of imprisonment, a requirement that the defendant be placed on a term of supervised release after imprison- ment. 18 U.S.C. 3583(a). A term of supervised release constitutes a period of time during which a person released from prison is subject to supervision by a probation officer. 18 U.S.C. 3601. The" degree of supervision is determined according to the conditions specified by the sentencing court, Ibid. Violation of a term of supervised release may result in the modifi- cation of the conditions of supervised release or the revocation of supervised release. 18 U.S.C. 3583(e). 6. ___________________(footnotes) 6 If supervised release is revoked, the person is returned to prison to serve all or part of the term of supervised release authorized by statute for the initial offense that resulted in the supervised release, without credit for the time served on re- lease, subject to certain statutory maximum terms 18 U.S.C. 3583(e)(3). In lieu of revocation, district courts may extend a term of supervised release if less than the maximum authorized term was previously imposed. 18 U.S.C. 3583(e)(2). If the con- duct of a person on supervised release merits favorable action, a district court may terminate a term of supervised release early and discharge the person at any time after the expiration of one year of supervised release. 18 U.S.C. 3583(e)(1). ---------------------------------------- Page Break ---------------------------------------- 15 The district court's authority to impose a term of supervised release is limited in numerous respects by Section 3583. For example, Section 3583(b) estab- lishes the maximum length of the term of supervised release that a district court is authorized to impose in different categories of cases. Section 3583(c) man- dates that a district court consider a specific list of factors when determining whether to include a term of supervised release, the length of such a term, and the conditions to impose on the term of release in a particular case. Section 3583(d) addresses the various conditions that a district court may, and in some instances must, impose on the term of supervised release. It authorizes district courts to impose three types of conditions on supervised release. First, it requires that certain mandatory conditions be imposed in all cases. It states that the district court "shall order, as an explicit condition of supervised release," that the defendant not commit another crime, that he or she not unlawfully use or possess a controlled sub- stance, and that he or she submit to periodic drug testing. 7. Second, Section 3583(d) grants district courts discretion to impose additional conditions. It states that a district court "may order, as a further condition of supervised release," certain conditions that are set forth as discretionary conditions for probation and "any other condition it considers to be appropriate: to the extent such condition is reason- ably related to particular sentencing factors, involves ___________________(footnotes) 7 Section 3583(d) imposes certain other mandatory condi- tions in cases involving domestic violence crimes. ---------------------------------------- Page Break ---------------------------------------- 16 no greater deprivation of liberty than necessary, and is consistent with the Sentencing Commission's pol- icy statements. Third, Section 3583(d) states that [i]f an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that [the alien] be deported and remain outside the United. States, and may order that he be delivered to a duly authorized immigration official for such deportation. Section 3583(d) does not authorize a district court to order an alien defendant deported as a condition of supervised release. Whereas Congress used the verb "order" to describe what a district court is authorized to do in imposing the listed mandatory and discretion- ary conditions, it did not use that verb to describe what a district court is authorized to do with regard to deportation of an alien. Instead, Congress used the verb "provide." Congress's intent to convey a differ- ent meaning by its use of a different. verb is apparent from the fact that it also used the verb "order" in that final sentence, but only to authorize the court to order the delivery of a defendant to an immigration official for deportation. The Tenth Circuit succinctly analyzed the terms used in the final sentence of Sec- tion 3583(d) as follows: By using two different verbs to describe what a district court may do under 3583(d), Congress presumably intended the verbs to convey their respective meanings. * * * The verb "provide" is defined as "[t]o exercise foresight in taking clue measures in view of a possible event;" * * * whereas the verb "order" is defined as "[t]o . . . command [or] authoritatively direct." * * * Had ---------------------------------------- Page Break ---------------------------------------- 17 Congress intended that 3583(d) allow the sen- tencing court to order, or "authoritatively direct," deportation, it could have easily so stated. How- ever, its choice of the verb "provide" connotes a different, presumably intended, meaning; it allows the sentencing court "[t]o exercise foresight . . . in view of a possible event," * * * by directing that in the event that the INS determines that the defendant-alien is "subject to deportation" upon release from prison, see 18 U.S.C. 3583(d), then the defendant-alien is to be deported. United States v. Phommachanh, 91 F.3d at 1385-1386 (quoting 10 The Oxford English Dictionary 907 (2d ed. 1989); 12 id. at 713); see also United States v. Xiang, 77 F.3d at 772 United States v. Quaye, 57 F.3d at 449; United States v. Oboh, 92 F.3d 1082, 1088 (11th Cir. 1996) (Barkett, J., dissenting, joined by Kravitch, Anderson, Birch, and Carries, JJ.), petitions for cert. pending, Nos. 96-6653 & 96-6658 (filed Nov. 6, 1996). 2. Examination of the purpose and history of Sec- tion 3583(d) demonstrates that Congress did not intend that the final sentence of Section 3583(d) be interpreted beyond its plain meaning to extend to judicial deportation orders. Rather, that provision was intended to harmonize the government interests served by supervised release with those furthered by deportation of criminal aliens. a. Supervised release is intended to ensure that a person released from prison and placed back into the community is supervised by a probation officer. The duties of a probation officer who is supervising a re- leased person include, for example, keeping informed of the supervisee's conduct, condition, and work and ---------------------------------------- Page Break ---------------------------------------- 18 reporting such information to the sentencing court; assisting the supervise to improve his conduct and condition; and keeping informed of the supervisee's compliance with the conditions of release, includ- ing payment of fines or restitution, and reporting such information to the sentencing court. 18 U.S.C. 3603(2), (3), (5), and (7). In order to facilitate such supervision, the standard conditions of supervised release generally include, inter alia: a prohibition against the supervise leaving the judicial district without permission of the court or the probation officer; a requirement that the supervise report, in person, to the probation officer on a periodic basis; and a requirement that the supervise permit a probation officer to visit him at any time at home, or any other place, and permit confiscation of any contraband ob- served by the officer. See, e.g., J.A. 13-14. Deportation of a supervise would be inconsistent with many conditions of supervised release. Deporta- tion would make it impossible for the supervise to comply with conditions such as reporting, in person, to a probation officer or having a probation officer visit the supervisee's home or workplace. It also would make it impossible for a probation officer to fulfill various statutory duties of supervision. such as assisting the supervise to improve' his condition and conduct and keeping apprised of the supervisee's whereabouts and work habits. Thus, "[w]ithout a provision such as the last sen- tence of 3583(d), `administrative' deportation by the INS might be regarded as inconsistent with judi- cially supervised release." United States v. Oboh, 92 F.3d at 1089 (Barkett, J., dissenting, joined by Kravitch, Anderson, Birch, and Carries, JJ.). Express ---------------------------------------- Page Break ---------------------------------------- 19 congressional authorization for courts to provide for deportation as a condition of supervised release was necessary to ensure that supervised release would not stand as an obstacle to deportation of an alien defendant merely because he had not yet completed his full supervised release term. Thus, the final sentence of Section 3583(d) makes clear that a court can provide for deportation of an alien defendant by the Attorney General if the alien is subject to de- portation under the INA, notwithstanding that de- portation would make it impossible for certain other conditions of supervised release to be met. Further support for that interpretation of Section 3583(d) is found in the fact that, at the same time Congress enacted Section 3583(d), it amended Section 242(h) of the INA to specify that supervised release is not "a ground for deferral of deportation." 8 U.S.C. 1252(h). See Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, Ch. II, 212(a)(2), 98 Stat. 1999 (enacting Section 3583(d) of Title 18); id. 220(b), 98 Stat. 2028 (amending Section 242(h) of the INA). The amendment provided that, unlike a term of imprison- ment (which precluded deportation until the full term has been served), the new sanction of supervised release was to be treated like parole and probation, which do not preclude the deportation of an alien. As amended, Section 242(h) provided: An alien sentenced to imprisonment shall not be deported until such imprisonment has been terminated by the release of the alien from con- finement. Parole, supervised release, probation, or possibility of rearrest or further confinement ---------------------------------------- Page Break ---------------------------------------- 20 in respect of the same offense shall not be a ground for deferral of deportation. 8 U.S.C. 1252(h). 8. Read in conjunction with that con- temporaneously enacted provision, Section 3583(d) is best interpreted as confirmation that deportation of a criminal alien during supervised release could pro- ceed under the INA, notwithstanding that such depor- tation would be inconsistent with other terms of release. 9. b. The history of Section 3583(d) and its prede- cessor statutes indicates that Section. 3583(d) was ___________________(footnotes) 8 The AEDPA subsequently amended Section 242(h) of the INA to permit the deportation of criminal aliens before the completion of a term of imprisonment in certain cases involv- ing nonviolent offenses if it would serve the best interests of the United States. See AEDPA 438(a), 110 Stat. 1275 (adding subsection (2), 8 U.S.C. 1252(h)(2)). The IIRAIRA rewrote Section 242 of the INA in its entirety. See IIRAIRA 306 (reproduced at 138 Gong. Rec. H11,803-H11,804 (daily ed. Sept. 28, 1996)). Similar substantive provisions are now found in Section 241(a)(4) of the INA, as added by Section 305(a)(3) of the IIRAIRA (reproduced at 138 Gong. Rec. H11,801 (daily ed. Sept. 28, 1996)) (to be codified at 8 U.S.C. 1251(a)(4)). 9 As the dissenters in Oboh point out, the fact that Section 3583(d) specifies that a court may provide that an alien de- fendant be deported "as a condition of supervised release" also weighs against an interpretation of that section to authorize a court to enter a judicial order of deportation. See United States v. Oboh, 92 F.3d at 1088-1089. By stating that the court may include deportation as a condition of supervised release, it implies that the consequence of a failure to satisfy that con- dition is that the court may revoke or modify the defendant's supervised release, see 18 U.S.C. 3583(e), not that the court may order the Attorney General to make a determination that deportation is warranted and deport the defendant. 92 F.3d at 1088-1089; cf. United States v. Quaye, 57 F.3d at 449. ---------------------------------------- Page Break ---------------------------------------- 21 intended to authorize a district court to provide for the Attorney General's deportation determination un- der the INA, not to authorize the district court to order deportation directly. The initial predecessor of the current Section 3583(d) was enacted in 1931, as an amendment to 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 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 offi- cial for deportation. Act of Mar. 2, 1931, ch. 371, 46 Stat. 1469. The committee reports accompanying that 1931 amend- ment explained that, because the then-current rules governing parole required that a prisoner remain within the jurisdiction of the court, an alien prisoner, who would be deported if paroled, could not be paroled because it was known that he would not be remaining in the court's jurisdiction. See S. Rep. No. 1733, 71st Cong., 3d Sess. 1 (1931); H.R. Rep. No. 1035, 71st Cong., 2d Sess. 1 (1930). The 1931 amendment estab- lished a means by which the parole board could facilitate deportation by immigration officials before completion of the service of the alien's full term of imprisonment. It did not, however, authorize the pa- role board to order the deportation of an alien and supplant the normal deportation procedures. See United States v. Quaye, 57 F.3d at 450; Secchi v. U.S. ---------------------------------------- Page Break ---------------------------------------- 22 Bureau of Immigration, 58 F. Supp. 569 (M.D. Pa. 1945). The provision was subsequently recodified at 18 U.S.C. 4204 (1952), see Act of June 25, 1948, ch. 645, 1, 62 Stat. 854, and later at 18 U.S.C. 4212 (1976), see Parole Commission and Reorganization Act, Pub. L. No. 94-233, 2, 90 Stat. 227 (1976). Section 4212 was repealed by the Sentencing Reform Act of 1984, which replaced the system of indeterminate sentencing and parole with sentencing under the Sentencing Guide- lines and created supervised release, including the current Section 3583(d), at issue here. See Pub. L. No. 98-473, Tit. II, Ch. II, 212(a)(2), 218(a)(5), 235,98 Stat. 1999,2027, 2031. The committee reports accom- panying the Sentencing Reform Act do not specifi- cally discuss the final sentence of Section 3583(d) concerning deportation of aliens, but it is obvious that that sentence was patterned after the former Section 4212. 10. Those origins indicate that Section 3583(d), like its predecessor that governed parole, does not authorize a judicial order of deportation. Instead, it preserves the established authority of the Attorney General to effect the deportation of an alien and pro- vides for carrying out such an order without violat- ing the statutory terms of supervised release. See United States v. Quaye, 57 F.3d at 450; United States ___________________(footnotes) 10 The former 18 U.S.C. 4212 (1976), as in effect when the Sentencing Reform Act was passed, provided: 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. ---------------------------------------- Page Break ---------------------------------------- 23 v. Oboh, 92 F.3d at 1090-1091 (dissenting opinion). As the Fifth Circuit describes Section 3583(d), it "paves the way for Executive Branch deportation proceed- ings; it does not permit courts to order deportation alone." United States v. Quaye, 57 F.3d at 450 (the history of Section 3583(d) presents "a powerful argu- ment that Congress never intended to alter th[e] tra- ditional allocation of power between Article II and Article III branches of government'')." B. The Determination Whether An Alien Defendant Is Subject To Deportation For Purposes Of Section 3583( d) Must Be Made Under The Immigration And Nationality Act Despite the text, purpose, and history of Section 3583(d), the court of appeals declined to adopt what we believe is the most natural reading of the final sen- tence of Section 3583(d). Instead, the court read into that sentence a grant of jurisdiction to a district court to enter a final deportation order without in- vocation of the standards or procedures of the INA. ___________________(footnotes) 11 In addition to ensuring that a term of supervised release does not stand as an obstacle to the deportation of an alien defendant, Section 3583(d) serves the government's purpose of establishing an efficient means of reimprisoning an alien de- fendant who reenters the United States during such term. In addition to authorizing a district court to provide for de- portation, Section 3583(d) authorizes a district court to provide that an alien defendant, who is subject to deportation, must remain outside the United States during the period of his supervised release. Consequently, if such an alien defendant reenters the United States, the United States may arrest that alien for violation of a condition of supervised release and reimprison him in accordance with Section 3583(e)(3), without having to pursue anew and independent criminal prosecution under 8 U.S.C. 1326, for unlawful reentry after deportation. ---------------------------------------- Page Break ---------------------------------------- 24 Such a reading runs contrary to Congress's long- standing practice of vesting sole authority to make deportation determinations in the Attorney General and her delegates. It also conflicts with the structure of Section 3583(d), which authorizes a district court to take certain actions with regard to deportation only "[i]f an alien defendant is subject to deportation." 18 U.S.C. 3583(d). Whether an alien is subject to de- portation can be answered only by reference to the INA, in which Congress has identified the grounds for reportability and for relief from deportation, as well as the procedures to be followed in deter- mining whether to enter an order of deportation. Consequently, Section 3583(d) and the INA must be construed together so as to give effect to both. See United States v. Sanchez, 923 F.2d at 237 ("As subsection 3583(d) provides no indication of a con- trary legislative design, we read its language in pari materia with the provisions of the Immigration and" Naturalization Act."); United States v. Phom- machanh, 91 F.3d at 1386 ("18 U.S.C. 3583(d) and 8 U.S.C. 1251 are in pari materia, and as such, must be read and applied together."). 1. The determinations of whether an alien is de- portable and whether an alien is entitled to a waiver of deportation or to other relief from deportation are matters that Congress has assigned, by statute, to the Attorney General (with the exception of 8 U.S.C. 1252a(d), discussed at pp. 33-38, infra). See 8 U.S.C. 1251-1254. Congress's assignment of that authority to the Attorney General and her delegates is con- sistent with the broad authority that Congress has vested in the Attorney General in immigration ---------------------------------------- Page Break ---------------------------------------- 25 matters generally. Section 103(a) of the INA pro- vides, in relevant part: 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 Presi- dent, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling. 8 U.S.C. 1103(a) (emphasis added). In particular, Con- gress specified that the procedures entrusted to the Attorney General under Section 242 of the INA, 8 U.S.C. 1252, for determination of deportability through an administrative proceeding, subject to judicial review, "shall be the sole and exclusive pro- cedure for determining the deportability of an alien under this section," 8 U.S.C. 1252(b), "[e]xcept as pro- vided in section 1252a(d)" (discussed below). 12. Con- gress vested the Attorney General with the authority to establish such regulations as she deems neces- sary for carrying out her authority under the INA. 8 U.S.C. 1103(a). Pursuant to that authority, the ___________________(footnotes) 12 The procedures that the Attorney General is required to administer under Section 1252 include providing notice to the alien of the charges; permitting the alien to hire a lawyer to represent him; allowing the alien to examine the government's evidence, present his own evidence, and cross-examine gov- ernment witnesses; and requiring that the deportation deter- mination be based upon substantial evidence. See 8 U.S.C. 1252(b)(1)-(4); see also 8 U.S.C. 1252b. ---------------------------------------- Page Break ---------------------------------------- 26 Attorney General has promulgated regulations to govern, inter alia, the proceedings to determine the deportability of aliens and the means for carrying out deportation orders (8 C.F.R. Pts. 242 and 243), as well as the procedures for seeking and granting asylum, withholding of deportation, suspension of deportation, voluntary departure, and adjustment of status to per- manent resident (8 G.F.R. Pts. 208,244 and 245). As the official charged with administering the INA, the Attorney General's statutory interpretations are entitled to deference. See INS v. Cardoza-Fonseca, 480 U.S. 421, 445-450 (1987) (analyzing INS's stat- utory interpretation under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). Her formulation of the standards govern- ing discretionary relief are subject to judicial review only for abuse of discretion. See INS v. Yueh-Shaio Yang, No. 95-938 (Nov. 13, 1996), slip op. 6; see also INS v. Rios-Pineda, 471 U.S. 444,451 (1985) (the INA "commits the definition of the standards in the Act to the Attorney General and his delegate in the first instance, and their construction and application of th[ese] standards] should not be overturned by a re- viewing court simply because it may prefer another interpretation of the statute'" (quoting INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981) (per curiam))). Under the standards and procedures of the INA and its implementing regulations, in order to determine whether a person is subject to deportation, one must first ascertain whether the person falls within a class of deportable aliens. Section 241 of the INA, 8 U.S.C. 1251, details the various classes, including aliens convicted of certain criminal offenses. See 8 U.S.C. 1251(a)(2). Classification as a deportable alien does not subject an alien to deportation, however. Certain ---------------------------------------- Page Break ---------------------------------------- 27 grounds of deportation maybe waived by the Attorney General under specified circumstances, as a matter of discretion. See, e.g., 8 U.S.C. 1251(a)(1)(E)(iii) and (H), (c). More importantly, many aliens may seek re- lief from deportation through a number of different statutory provisions. For instance, a deportable alien may seek asylum (8 U.S.C. 1158), withholding of deportation (8 U.S.C. 1253(h)), suspension of deport- ation (8 U.S.C. 1254(a)(2)), or a determination of nonexcludability (8 U.S.C. 1182(c)). Although an alien must meet certain threshold statutory require- ments in each instance, the ultimate determination of whether to grant relief or to subject the alien to deportation is often left to the discretion of the Attorney General. For example, this Court has de- scribed the Attorney General's suspension of deporta- tion as "'an act of grace' which is accorded pursuant to her 'unfettered discretion.'" INS v. Yueh-Shaio Yang, slip op. 4 (quoting Jay v. Boyd, 351 U.S. 345, 354 (1956)). Other determinations by the Attorney General are far from discretionary, but rather mandated by pro- visions of the INA that implement the nation's treaty obligations, or by matters of foreign affairs. For ex- ample, if a reportable alien qualifies for withholding of deportation because his life or freedom would be threatened, on account of race, religion, nationality, membership in a particular social group, or political opinion, in the country to which he is to be deported, the Attorney General is statutorily prohibited from effectuating that deportation unless one of the speci- fied exceptions applies, such as commission of a particularly serious crime that renders him a dan- ger to the community. See 8 U.S.C. 1253(h)(2)(B). The INA also affords the Attorney General the ability ---------------------------------------- Page Break ---------------------------------------- 28 to take into account other law enforcement interests in particular cases that may warrant the presence in this country, for a particular period of time, of an alien who is subject to deportation. See, e.g., 8 U.S.C. 1182(d)(5); 8 C.F.R. 212.14 (providing for temporary parole in the United States of aliens whom a law enforcement authority requires to serve as witnesses or informants in criminal/counter-terrorism mat- ters). Even if the Attorney General determines that an alien is deportable and not entitled to any of the discretionary relief provisions, the Attorney General may decide not to deport the alien if such deportation is not practicable, advisable or possible. See 8 U.S.C. 1252(c). In light of the structure and history of the laws governing immigration and the role of the Executive Branch in conducting foreign affairs, it would be ex- ceptional for Congress to have granted jurisdiction to district courts to decide matters that would have di- rect international implications by necessitating the transport of a person from this country to foreign soil, without requiring the consent of, or consultation with, the Attorney General. This Court previously has recognized that "any policy toward aliens is vi- tally and intricately interwoven with contemporane- ous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of gov- ernment as to be largely immune from judicial in- quiry or interference." Harisiades v. Shaughnessy, 342 U.S. 580, 588-58.9 (1952); see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-543 (1950) (the power to exclude aliens from the United States "is inherent in the executive power to control ---------------------------------------- Page Break ---------------------------------------- 29 the foreign affairs of the nation," and "it is not within the province of any court, unless expressly author- ized by law, to review the determination of the po- litical branch of the Government to exclude a given alien"). Moreover, the grant of authority to the At- torney General to initiate deportation proceedings and to make deportation determinations is consistent with her general discretion regarding decisions to enforce the law, as well as the presumptive author- ity of Executive agencies to make nonenforcement decisions that are not subject to judicial review. See Heckler v. Chancy, 470 U.S. 821 (1985); cf. Morrison v. Olson, 487 U.S. 654 (1988). 2. a. The references to deportation in the final sen- tence of Section 3583(d) do not carve out an excep- tion to that statutory scheme and long tradition of Attorney General authority in the realm of deporta- tion. It is extremely unlikely that Congress, in a single sentence in Section 3583(d) that merely allows a district court to "provide" that an alien be deported, intended to repeal by implication the entire INA in a particular category of cases and to exempt those cases from the Attorney General's exclusive author- ity over deportation matters. It is also unlikely that Congress intended that Section 3583(d) render cer- tain aliens altogether ineligible for relief from depor- tation under the INA provisions relating to asylum, withholding of deportation, and the like. But that would be the necessary result of the Eleventh Cir- cuit's interpretation. 13. ___________________(footnotes) 13 Section 3583(d) contains no provision for the sentencing court to consider requests for asylum or other relief, nor does it authorize the court to exercise discretion to grant waivers of deportation as the INA authorizes the Attorney General to ---------------------------------------- Page Break ---------------------------------------- 30 Section 3583(d) should, instead, be interpreted to give effect to both its purpose and the purposes of the comprehensive provisions of the INA. As other courts of appeals have concluded, read in pari materia with the INA, Section 3583(d) can only be interpreted as authorizing the sentencing court to provide, as a condition of supervised release, that an alien defendant who is subject to deportation, i.e., an alien who has been or will be ordered deported by the Attorney General under the INA, "be surrendered to immigration officials for deportation proceedings un- der the [INA] * * * for the purpose of determining whether he is 'an alien defendant . . . subject to deportation'" and for such deportation. United States v. Sanchez, 923 F.2d at 237; see also United States v. Phommachanh, 91 F.3d at 1386 (same). That interpretation of Section 3583(d) "is consis- tent with the overall division of responsibility that Congress created between the INS and the courts." United States v. Phommachanh, 91 F.3d at 1386 (quoting United States v. Xiang, 77 F.3d at 772-773). As numerous courts of appeals have recognized, it preserves Congress's long tradition of granting the ___________________(footnotes) do. In order to effectuate the INA along with Section 3583(d), a district court would have to devise some means of replicating the administrative deportation hearing process" or would have to stay its proceedings to afford an alien an opportunity to seek such relief through the INA structure. The Eleventh Circuit has not required that district courts provide alien defendants with an opportunity to seek such relief from deportation, how- ever. The court of appeals recently affirmed a district court's refusal of an alien's request that it withhold its judicial depor- tation order to allow the INS to determine whether the alien was eligible for asylum under the INA, United States v. Oboh, 92 F.3d at 1083-1084. ---------------------------------------- Page Break ---------------------------------------- 31 Attorney General sole power to initiate deportation determinations. See id. at 1386-1387; United States v. Quaye, 57 F.3d at 449450; cf. United States v. Kassar, 47 F.3d at 568 (decision to deport rests in sound discretion of Attorney General). It is consistent with the understanding that "the power to expel or ex- clude 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 (1953). 14. As the Fifth Circuit reasoned, courts should not assume "that Congress intended to undermine th[e] 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." United States v. Quaye, 57 F.3d at 450. The Court should "insist on greater clarity of purpose when a statute would be read to upset a status quo long in place." Ibid. b. The court of appeals erred in reading former provisions of the INA, which provided for judicial rec- ommendations against deportation, as evidencing a congressional intent to enable district courts to enter orders directly deporting aliens. See United States v. Oboh, 92 F.3d at 1086-1087. The Oboh en banc major- ity cited former Section 155 of Title 8 (1940), which ___________________(footnotes) 14 In fact, Congress recently provided that discretionary decisions and actions by the Attorney General under the INA will no longer be subject to judicial review. See IIRAIRA 306(a) (reproduced at 138 Cong. Rec. H11,803 (daily ed. Sept. 28, 1996)) (effective date April 1, 1997, see IIRAIRA 306(c)(1), 309(a) (reproduced at 138 Cong. Rec. H11,804, H11,808 (daily ed. Sept. 28, 1996)) (as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 2, 110 Stat. 3657)). ---------------------------------------- Page Break ---------------------------------------- 32 provided that, in the case of an alien whose reportabil- ity was based on a conviction of a crime involving moral turpitude, the alien was not to be deported if the alien had been pardoned or if the sentencing court recommended against his deportation, after having given due notice to the responsible Executive Branch officials. The court noted that the pertinent part of Section 155 was replaced by Section 241(b) of the INA, 8 U.S.C. 1251(b) (1952). Section 1251(b) provided that the provision rendering an alien deportable on ac- count of having committed certain crimes involving moral turpitude (Section 241(a)(4) of the INA, 8 U.S.C. 1251(a)(4) (1952)), did not apply if the alien was pardoned or if the sentencing court recommended against deportation, after having given notice to the INS, the prosecuting authorities, and the interested State, and after having provided those officials with an opportunity to make representations to the court on the matter. Section 1251(b) did not prohibit the Attorney General from deporting any aliens, however, but merely authorized a sentencing court to preclude the INS from using a particular conviction as the stat- utory basis for finding the alien reportable under Section 1251(a). The Attorney General retained the authority to deport the alien on any other basis authorized under the INA. See United States v. Quintana, 914 F.2d 1409, 1410-1411 (10th Cir. 1990) (Section 1251(b) is inapplicable to deportation based on any ground other than Section 1251(a)(4)); Jew Ten v. INS, 307 F.2d 832 (9th Cir. 1962), cert. denied, 371 U.S. 968 (1963); United States v. George, 534 F. Supp. 570, 571 (S.D.N.Y. 1982). The Attorney General also retained the authority to consider the conduct under- lying the conviction, and weigh it as an adverse factor ---------------------------------------- Page Break ---------------------------------------- 33 against the alien, when exercising her discretion whether to grant relief from deportation under the INA. See Hassan v. INS, 66 F.3d 266, 269 (10th Cir. 1995); Delgado-Chavez v. INS, 765 F.2d 868, 869 (9th Cir. 1985) (prior conviction that Section 1251(b) pre- cluded from serving as basis for deportation none- theless "may be considered as an adverse factor [by the Attorney General's delegates] in deciding wheth- er the favorable exercise of discretion is warranted"); Oviawe v. INS, 853 F.2d 1428, 1431.1434 (7th Cir. 1988); In re Gonzalez, 16 I. & N. Dec. 134, 135 & n.1 (BIA 1977). But see Giambanco v. INS, 531 F.2d 141, 147-149 (3d Cir. 1976). Even more significantly, former Sections 155 and 1251(b) did not authorize a district court to initiate deportation proceedings against an alien and did not grant a district court jurisdiction to enter a deportation order against an alien as part of a criminal sentence. 3. The fact that Congress did not intend, through the single sentence in Section 3583(d), to carve out a category of cases in which judicial orders of depor- tation are authorized is evident when Section 3583(d) is compared to a later enacted provision, 8 U.S.C. 1252a(d) (renumbered by the IIRAIRA as Section 238(c) of the INA (to be codified at 8 U.S.C. 1228(c))), in which Congress explicitly authorized judicial or- ders of deportation in certain cases, according to certain procedures. a. In 1994, Congress added subsection (d) to Sec- tion 242A of the INA to provide that a district court "shall have jurisdiction to enter a judicial order of deportation at the time of sentencing" against cer- tain criminal aliens in particular cases. 8 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 34 1252a(d)(1). 15. See Immigration and Nationality Tech- nical Corrections Act of 1994, Pub. L. No. 103-416, 224(a), 108 Stat. 4322-4323.'" Congress included that provision as part of the INA, not as- part of the criminal code, and was explicit in establishing dis- trict court jurisdiction to enter deportation orders (i.e., court "shall have jurisdiction to enter a judicial order of deportation"). Moreover, Congress created a mechanism that preserves the Attorney General's ___________________(footnotes) 15 Aliens to whom Section 1252a(d), as enacted in 1994, ap- plies are those convicted of certain crimes of moral turpitude, those with multiple criminal convictions involving moral tur- pitude, and those convicted of an aggravated felony. See 8 U.S.C. 1251(a)(2)(A); United States v. Quaye, 57 F.3d at 450 n.2; United States v. Phommackanh, 91 F.3d at 1386. The IIRAIRA subsequently amended Section 242A(d) of the INA, 8 U.S.C. 1252a(d) (and renumbered it as Section 238(c) of the INA (to be codified at 8 U.S.C. 1228(c))), apparently intending to broaden its applicability to all criminal cases involving de- portable aliens and to narrow the circumstances in which a court order would have preclusive effect in an administrative proceeding. See IIRAIRA 374(a) (reproduced at 138 Cong. Rec. H11,813-H11,814 (daily ed. Sept. 28, 1996)). 16 Before the amendment authorizing judicial deportation orders, Congress had addressed the issue of deportation of criminal aliens by enacting Section 1252a of Title 8 in 1988 to provide for expedited deportation proceedings at correctional facilities for aliens convicted of aggravated felonies to ensure "expeditious deportation, where warranted, following the end of the alien's incarceration for the underlying sentence ." 8 U.S.C. 1252a(a)(1) (1988). See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 7347, 102 Stat. 4471. Earlier in 1994, Congress had amended Section 1252a to create expedited ad- ministrative procedures for the deportation of aliens who are not lawfully admitted to the United States, have committed an aggravated felony, and are not eligible for relief from deportation. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 130004, 108 Stat. 2026-2028. ---------------------------------------- Page Break ---------------------------------------- 35 authority to initiate deportation by conditioning the district court's jurisdiction to deport an alien in a particular case on a request "by the United States Attorney with the concurrence of the Commissioner [of the INS]'' to enter a judicial deportation order in that case. 8 U.S.C. 1252a(d)(1). Congress established detailed procedures to be followed by the United States Attorney, the INS Commissioner, and the court in making a request for judicial deportation and in deciding whether to enter such an order. The procedures incorporate the essen- tial safeguards of INA administrative proceedings (see note 12, supra) and permit aliens to seek relief from deportation under the INA. The United States Attorney must provide notice, before trial or entry of a plea, to the court and the alien defendant of an intent to request judicial deportation. 8 U.S.C. 1252a(d)(2)(A). After conviction, but 30 days before sentencing, the United States Attorney, with the concurrence of the INS Commissioner, must file a charge "containing factual allegations regarding the alienage of the defendant and identifying the crime. or crimes which make the defendant reportable under section 1251(a)(2)(A)." 8 U.S.C. 1252a(d)(2)(B). If the alien defendant establishes prima facie eligibility y for relief from deportation under the INA, the INS Commissioner must provide the sentencing court with a recommendation and report on the alien's eligi- bility for relief, and the court is expressly author- ized to then "either grant or deny the relief sought." 8 U.S.C. 1252a(d)(2)(C). The alien defendant is afford- ed the right to examine the evidence against him or her, to present evidence, and to cross-examine gov- ernment witnesses. 8 U.S.C. 1252a(d)(2)(D)(i). The court's deportation order can be based on consid- ---------------------------------------- Page Break ---------------------------------------- 36 eration only of evidence that would be admissible in an administrative deportation hearing under the INA. 8 U.S.C. 1252a(d)(2)(D)(ii). Congress explicitly stated that a district court "may order the alien deported if the Attorney General demonstrates that the alien is reportable" under the INA. 8 U.S.C. 1252a(d)(2) (D)(iv). 17. Finally, Congress preserved the Attorney General's authority to initiate administra- tive deportation proceedings against the alien defen- dant under the INA, upon the same ground or other grounds of deportability, notwithstanding a district court's denial of a request for a judicial order of de- portation under Section 1252a(d), so long as the dis- trict court did not issue a decision on the merits of the request. 8 U.S.C. 1252a(d)(4). The explicit limitation of the district court's authority to cases in which the Attorney General's delegates seek judicial deportation, and the detailed procedures and standards set forth to govern judicial deportation orders, are wholly absent from Section 3583(d) of Title 18. 18. Thus, if Section 3583(d) is in- terpreted to allow a district court to order an alien ___________________(footnotes) 17 Under Section 1252a(d), an alien defendant and the United States have the right to appeal from a grant or a denial of judicial deportation and that appeal is governed, as a general matter, by the provision of the INA that governs judicial re- view of the Attorney General's final administrative orders of deportation. See 8 U.S.C. 1252a(d)(3)(A). 18 We do not agree with petitioner or his amici (see, e.g., Pet. Br. 24-27) that, if Section 3583(d) were interpreted to grant district courts authority to enter judicial orders of depor- tation, constitutional problems would arise. If district courts were granted such jurisdiction, we are confident that they would afford alien defendants the necessary procedural safe- guards to meet constitutional due process standards. ---------------------------------------- Page Break ---------------------------------------- 37 defendant deported as a condition of supervised re- lease, the result would be an "illogical set of judicial deportation rules." United States v. Phommachanh, 91 F.3d at 1387; United States v. Quaye, 57 F.3d at 450 (reading Section 3583(d) to authorize judicial depor- tation orders "would create an extraordinary set of rules"). Section 3583(d) would permit judicial depor- tation of any deportable aliens without the specific procedural safeguards Congress has provided in the INA, while 8 U.S.C. 1252a(d) would protect deportable aliens convicted of particularly heinous crimes with those detailed procedural safeguards. United States v. Phornmachanh, 91 F.3d at 1387; United States v. Quaye, 57 F.3d at 450. In addition, such a reading of Section 3583(d) would "allow[] broader judicial depor- tation than that allowed by the subsequently enacted 1252a(d)," thereby rendering Section 1252a(d) mean- ingless. United States v. Phommachanh, 91 F.3d at 1387; United States v. Xiang, 77 F.3d at 773. Congress must be presumed not to have performed such "a useless act" in enacting Section 1252a(d). United States v. Phommachanh, 91 F.3d at 1387 (quoting 2B Norman J. Singer, Sutherland Statutory Construction 49.11, at 83 (5th ed. 1992)). Like the Tenth Circuit, this Court should decline to "interpret 3583(d) in such a way as to create this nonsensical combination of judicial deportation rules." Ibid. b. Congress's amendment, in 1996, of the INA pro- visions regarding judicial deportation orders further demonstrates that Section 3583(d) should not be interpreted to authorize entry of a judicial deporta- tion order as a condition of supervised release. Sec- tion 374(a)(3) of the IIRAIRA added a new subsection to Section 242A of the INA, 8 U.S.C. 1252a (re- numbered by the IIRAIRA as Section 238 of the INA ---------------------------------------- Page Break ---------------------------------------- 38 (to be codified at 8 U.S.C. 1228)), that authorizes stipulated orders of deportation via plea agreements whereby the alien defendant agrees to a judicial order of deportation as a condition of a plea agreement or as a condition of probation or supervised release. See 138 Cong. Rec. H11,813-H11,814 (daily ed. Sept. 28, 1996) (to be codified at 8 U.S.C. 1228(c)(5)). Such stip- ulated orders of deportation are authorized, however, only in cases where the United States Attorney has obtained the concurrence of the Commissioner of the INS to enter into the plea agreement and the stipu- lation. Ibid. The IIRAIRA also explicitly grants a district court "jurisdiction to enter a judicial order of deportation pursuant to the terms of such stip- ulation." Ibid. Moreover, Section 374(b)(3) of the IIRAIRA amended the criminal code relating to pro- bation to provide that a court may order an alien deported as a condition of probation either pursuant to such a stipulation under the INA or "if, after notice and hearing pursuant to [8 U.S.C. 1228(c)], the Attor- ney General demonstrates by clear and convincing evidence that the alien is reportable." See 138 Cong. Rec. H11,814 (daily ed. Sept. 28, 1996) (to be codified at 18 U.S.C. 3563(b)(21)). The IIRAIRA did not, however, amend the criminal code relating to conditions of supervised release in a similar manner. Thus, Section 3583(d) still contains only a single sentence authorizing a district court to "provide" that an alien defendant be deported as a condition of supervised release, without any explicit grant of jurisdiction to the district court to enter a judicial order of deportation, without any provision for consultation with, or a request from, the United States Attorney or the Commissioner of the INS, and without any of the procedural safeguards contained in ---------------------------------------- Page Break ---------------------------------------- 39 the other provisions governing deportation determi- nations. Under those circumstances, it would be un- reasonable to construe Section 3583(d) to effect a similar change regarding the authority of district courts in deportation matters vis-a-vis the authority of the Attorney General. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney MICHAEL R. DREEBEN Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General THOMAS M. GANNON Attorney NOVEMBER 1996 ---------------------------------------- Page Break ---------------------------------------- APPENDIX Section 3583 of Title 18 provides, in relevant part: 3583. Inclusion of a term of supervised release after imprisonment (a) IN GENERAL.- The court, in imposing a sen- tence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute or if the defendant has been convicted for the first time of a domestic violence crime as defined in section 3561(b). (b) AUTHORIZED TERMS OF SUPERVISED RE- LEASE.-Except as otherwise provided, the authorized terms of supervised release are- (1) for a Class A or Class B felony, not more than five years; (2) for a Class C or Class D felony, not more than three years; and (3) for a Class E felony, or for a misdemeanor (other than a petty offense), not more than one year. * * * * * (d) CONDITIONS OF SUPERVISED RELEASE.-The court shall order, as an explicit condition of super- vised release, that the defendant not commit another Federal, State, or local crime during the term of (1a) ---------------------------------------- Page Break ---------------------------------------- 2a supervision and that the defendant not unlawfully possess a controlled substance. * * * The court may order, as a further condition of supervised release, to the extent that such condition- (1) is reasonably related to the factors set forth m section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) revolves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a); any condition set forth as a discretionary condition of probation m section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate. 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. * * * * * ---------------------------------------- Page Break ---------------------------------------- No. 95-8736 In the Supreme Court of the United States OCTOBER TERM, 1996 LARRY OSA OGBOMON, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT SUGGESTION OF MOOTNESS WALTER DELLINGER Acting Solicitor General Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page Broughton v. North Carolina, 717 F.2d 147 (4th Cir. 1983), cert. denied, 466 U.S. 940 (1984) . . . . 11 Carafas v. LaVallee, 391 U.S. 234 (1968) . . . . 10 Chukwura v. United States, cert. denied, 115 S. Ct. 102 (1994) (No. 93-8962) . . . . 8 Evitts v. Lucey, 469 U.S. 387 (1985) . . . . 11 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) . . . . 8 Honig v. Doe, 484 U.S. 305 (1988) . . . . 8 Lane v. Williams, 455 U.S. 624 (1982) . . . . 11 Liner v. Jafco, Inc., 375 U.S. 301 (1964) . . . . 2 Minnesota v. Dickerson, 508 U.S. 366 (1993) . . . . 11 Murphy v. Hunt, 455 U.S. 478 (1982) . . . . 6 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) . . . . 4 North Carolina v. Rice, 404 U.S. 244 (1971) . . . . 2, 12 Preiser v. Newkirk, 422 U.S. 395 (1975) . . . . 4 Roe v. Wade, 410 U.S. 113 (1973) . . . . 8 Rosario v. Rockefeller, 410 U.S. 752 (1973) . . . . 8 Sibron v. New York, 392 U.S. 40 (1968) . . . . 11 Stone v. INS, 115 S. Ct. 1537 (1995) . . . . 6 United States v. Munsingwear, Inc., 340 U.S. 36 (1950) . . . . 4 United States v. Tatum, 998 F.2d 893 (11th Cir. 1993) . . . . 3 U.S. Bancorp. Mortgage Co. v. Bonner Mall Part- nership, 115 S. Ct. 386 (1994) . . . . 4 Vandenberg v. Roberts, 801 F.2d 877 (10th Cir. 1986) . . . . 11 Weinstein v. Bradford, 423 U.S. 147 (1975) . . . . 5, 6, 7 (I) ---------------------------------------- Page Break ---------------------------------------- II Constitution, statutes and rules: Page U.S. Const. Art. III . . . . 2, 4 Illegal Immigration Reform and Immigrant Respon- sibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (reproduced at 138 Cong Rec. H11,798 [daily ed. Sept. 28, 1996)): 304(a)(3) (to be codified at 8 U.S.C. 1230(a) (3)) . . . . 8-9, 10 Immigration and Nationality Act, 8 U.S.C. 1101 et seq . . . . 1, 6 106(a)(3), 8 U.S.C. 1105a(a)(3) (1994) . . . . 7,8 212(a)(6)(B)(i), 8 U.S.C. 1182(a)(6)(B)(i) (1994) . . . . 13 238(c) (to be codified at 8 U.S.C. 1228(c)) . . . . 9 241(a)(1)(A), 8 U.S.C. 1251(a)(1)(A) (1994) . . . . 13 276, 8 U.S.C. 1326 (1994) . . . . 12 18 U.S.C. 3583(d) . . . . 1, 3, 5, 6, 9 18 U.S.C. 3583(h) . . . . 4 Fed. R. App. P. 4(b) . . . . 7 Sup. Ct. R. 21 . . . . 1 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 95-8736 LARRY OSA OGBOMON, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT SUGGESTION OF MOOTNESS Pursuant to Rule 21 of the Rules of this Court, the Acting Solicitor General, on behalf of the United States, suggests that the Court dismiss this case as moot. The question presented in this case is whether 18 U.S.C. 3583(d) authorizes a district court to order a criminal defendant deported, as a condition of super- vised release, without recourse to the standards and procedures for determining reportability and relief from deportation under the Immigration and Nation- ality Act (INA), 8 U.S.C. 1101 et seq., and implement- ing regulations. That question is based on peti- tioner's challenge to a condition of supervised release imposed by the district court at his original sentenc- ing. The court of appeals affirmed that condition in a judgment entered on May 5, 1995. Petitioner's (1) ---------------------------------------- Page Break ---------------------------------------- 2 petition for rehearing was denied on January 22, 1996. Since the denial of rehearing, however, on April 10, 1996, the district court has entered an order revoking petitioner's supervised release and ordering his imprisonment, without imposing any new term of supervised release.: See U.S. Br. 6-7. Petitioner's sentence in this case thus no longer includes a term of supervised release. Nor does his sentence include the deportation condition formerly imposed on that revoked term of supervised release. The revocation of petitioner's supervised release by the district court thus renders the case moot. 1. This Court's "lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964). As the Court has recognized, "federal courts are without power to decide "questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam). Petitioner's challenge to the condition of his supervised release. that he be deported cannot "affect the rights of litigants in the case before" this Court, 404 U.S. at 246, because the challenged order of deportation was imposed as a condition on a super- vised release term that has been revoked. None of the conditions of that revoked term of supervised release are in force at this time, including the condition that petitioner be deported. Petitioner has thus obtained the key relief that he seeks in this case-vacation of the condition of his supervised release term that required his deportation and precluded him from appealing or resisting any order of deportation by the ---------------------------------------- Page Break ---------------------------------------- 3 Immigration and Naturalization Service. Petitioner did not appeal from the order revoking his supervised release, and, accordingly, that term cannot be reinstated. In our brief on the merits, we noted that it was unclear whether the district court had contemplated that petitioner would be deported under the original sentence upon completion of the term of imprison- ment imposed on revocation. We also noted that the Eleventh Circuit had not, apparently, determined whether an order of judicial deportation, under its interpretation of Section 3583(d), may be carried out after. the revocation of supervised release and the completion of the term of reimprisonment, when no new term of supervised release was imposed. U.S. Br. 6. We now believe that neither the district court nor the court of appeals could give any operative effect to the deportation condition that was part of the revoked term of supervised release in this case. The Eleventh Circuit has expressly stated that a revoked term of supervised release "no longer exists." United States v. Tatum, 998 F.2d 893, 895 (1993). Thus, when the sentencing court in this case revoked petitioner's supervised release, that term of supervised release, and its conditions, ceased to exist. 1. To our knowledge, no court has suggested ___________________(footnotes) 1 In Tatum, the court held that, under former law, the sentencing court was without statutory authority to reimpose a new term of supervised release to follow imprisonment ordered upon revocation of supervised release. We do not agree with the holding of Tatum on that issue; in our view, a court operating under former law did have the power to reimpose a new term of supervised release to follow a term of imprisonment ordered upon revocation of supervised release. We agree with Tatum, however, that upon revocation, the ---------------------------------------- Page Break ---------------------------------------- 4 that a revoked term of supervised release automati- cally carries forward to be served later Rather, if a supervised-release violator is required to serve a term of imprisonment as a result of his violation, any further supervised release must be expressly ordered by the sentencing court at the time" of revocation. That did not occur here. Absent any continuing existence of the condition that petitioner challenges, no live controversy re- mains, and the case is nonjusticiable under Article III of the Constitution Nebraska Press Ass'n v. Stuart, 427 U.S. 539,546 (1976); Preiser v. Newkirk, 422 U.S. 395, 401 (1975). An actual controversy must exist at all stages of appellate review, including in this Court. U.S. Bancorp Mortgage Co. v. Bonner Mall Partner- ship, 115 S. Ct. 386, 389 (1994); United States v. Munsingwear, Inc., 340 U.S. 36 (1950). Because a live controversy no longer exists in this case, the case has become moot. 2. 2. This Court has recognized that an exception to usual mootness principles may be applied in cases that are capable of repetition, yet evading review. ___________________(footnotes) original term of supervised release "no longer exists." Since Tatum, Congress has clarified, in 18 U.S.C. 3583(h), that, when a court revokes supervised release, it may order a defendant to be placed on a new terra of supervised-release to begin after the completion of imprisonment. The sentencing court in this case did not invoke Section 3593(h) when it revoked petitioner's supervised release and ordered him imprisoned. 2 Indeed, because petitioner's supervised release was revoked on April 10, 1996, the case became moot before the petition for a writ of certiorari was filed in this Court on April 19, 1996. This Office did not become aware of the revocation of petitioner's supervised release until after the Court granted certiorari on October 1, 1996. ---------------------------------------- Page Break ---------------------------------------- 5 The Court has also reviewed challenges involving criminal sentences even after completion of-the sen- tence if the challenged provision has collateral legal consequences. Neither basis for finding an exception to the mootness doctrine exists in this case. a. In the brief filed by the amicus curiae invited by this Court to defend the judgment of the court of appeals, amicus suggests that, because a similar deportation condition is included as a term of super- vised release to which petitioner has been sentenced in another criminal case in another federal district court, this case falls within the mootness exception for controversies that are. capable of repetition, yet evading review. See Br. of Court-invited Amicus Curiae 5 n.4. To come within that exception, two showings are necessary: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). Neither condition is met in this case. On March 18, 1996, petitioner was charged in the United States District Court for the Northern District of Alabama with commission of bank fraud. Petitioner ultimately was indicted on that and other federal charges, entered a guilty plea to the indict- ment, and was sentenced by that court to 24 months' imprisonment, to be followed by five years' supervised release. U.S. Br. 7 n.5. The court ordered, inter alia, as a condition of supervised release, that petitioner be deported immediately upon completion of his term of imprisonment, in accordance with Section 3583(d), and that petitioner be delivered to an authorized INS offi- cial for execution of the deportation order. Ibid. ---------------------------------------- Page Break ---------------------------------------- 6 The Alabama district court order does not demon- strate that petitioner, "the complaining party" in this case, is likely to be subject again to the same action that he challenges here. Weinstein v. Bradford, 423 U.S. at 149. The legal issues raised by the Alabama judgment are not identical to the legal issues raised in this case. By the time of the sentencing by the Alabama district court, an immigration judge had entered an order of deportation against petitioner under the INA, 8 U.S.C. 1101 et seq., and had issued a warrant directing the INS to arrest and deport petitioner. See U.S. Br. 6 n.4. Petitioner did not appeal the immigration judge's order and was thus under a final order of deportation under the INA, see Stone v. INS, 115 S. Ct. 1537 (1995); an immigration judge had also denied his motion to reopen his deportation proceedings. See U.S. Br. 6 n.4. When an alien defendant is under a final deportation order pursuant to the INA and an immigration judge has ordered him to be arrested and deported, the Attorney General already has made her final determination, under the standards and procedures of the INA, that the alien is subject to deportation under the INA. See id. at 30 (Indicating that an alien subject to deporta- tion for purposes of Section 3583(d) is "an alien who has been or will be ordered deported by the Attorney General under the INA") (emphasis added). An order of judicial deportation under Section 3583(d) entered after a final administrative order of deportation raises different legal issues from those raised by the instant case. Cf. Murphy v. Hunt, 455 U.S. 478, 481 n.5 (1982) (per curiam) (defendant's challenge to limitation on pretrial bail was moot after his conviction; even if the defendant had challenged limitations on bail pending ---------------------------------------- Page Break ---------------------------------------- 7 appeal, that claim involved different legal considera- tions). Nor does a challenge to the validity of a judicial deportation order involve a condition that is "too short" in duration to permit complete review in the federal judicial system before its expiration. Wein- stein v. Bradford, 423 U.S. at 149. Petitioner is entitled to appeal a sentence, and he could have appealed the sentence imposed by the Alabama dis- trict court, including the judicial order of deportation imposed as a condition of supervised release. 3. If a defendant (such as petitioner) anticipates that he will complete his term of imprisonment and then face deportation under a term of supervised release before completion of the entire appellate process (including any review by this Court), the defendant may seek to protect his ability to obtain relief by requesting a stay of the judicial deportation order. Any failure on a defendant's part to take advantage of the available means to protect an appeal of his sentence would not justify application of the mootness exception for controversies that evade judicial review, because any loss of direct appeal rights could be avoided. 4. Indeed, at least one petition raising the legal issue presented here did reach this Court without becoming moot. ___________________(footnotes) 3 To our knowledge, petitioner had not filed a notice of appeal from his sentence in the Alabama district court within the time allowed by Fed. R. App. P. 4(b). The finality of that sentence thus makes it doubtful that any favorable resolution of the underlying legal issue in this case would help petitioner in that case. 4 Petitioner, of course, is under an independent final order of deportation issued under the INA. Petitioner did not seek review of that order or invoke procedures that would operate to stay it. See 8 U.S.C. 1105a(a)(3) (1994). ---------------------------------------- Page Break ---------------------------------------- 8 See Chukwura v. United States, cert. denied, 115 S. Ct. 102 (1994) (No. 93-8962); see 93-8962 U.S. Br. 5-6, 8 (petitioner had sought stay of court of appeals' man- date pending his petition for certiorari, and his petition for judicial review of his administrative order of deportation under the INA was pending in the court of appeals, thus automatically staying deportation under 8 U.S.C. 1105a(a)(3) (1994)). It would not be appropriate to apply the capable-of- repetition-yet-evading-review exception here based on speculation that the Alabama district court's deporta- tion order could become moot in the same manner as in the instant case. That would require petitioner to violate his supervised release conditions-an occur- rence that petitioner can avoid, and is compelled by law to avoid. Exemption of a controversy from moot- ness because it will otherwise continue to evade review is generally justified only when the evasion of review results from circumstances that cannot be avoided. See, e.g., Honig v. Doe, 484 U.S. 305, 317-323 (1988) (aging); Roe v. Wade, 410 U.S. 113, 125 (1973) (progression of pregnancy); Rosario V. Rockefeller, 410 U.S. 752, 756 n.5 (1973) (public elections); Globe Newspaper Co. v. Superior Court, 457 U.S. 596,602- 603 (1982) (completion of criminal trials from which press and public are excluded). Finally, application of the mootness exception for recurring controversies that evade review would be particularly inappropriate in this case, because the prospect of "repetition" of the specific legal contro- versy raised by petitioner will be eliminated after April 1,1997, the effective date of Section 304(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (reproduced at 138 ---------------------------------------- Page Break ---------------------------------------- 9 Cong. Rec. H11,798 (daily ed. Sept. 28, 1996)) (to be codified at 8 U.S.C. 1230(a)(3)), Section 304(a)(3) adds to the INA a new Section 240 that states that, [u]nless otherwise specified in [the INA], a pro- ceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. The INA does "otherwise specif[y]" that judicial or- ders of deportation are authorized in proceedings under the recently enacted, and even more recently amended and renumbered, Section 238(c) of the INA (to be coddled at 8 U.S.C. 1228(c)) (see U.S. Br. 33-38). That Section, unlike 18 U.S.C. 3583(d), includes de- tailed procedures requiring, inter alia, a recommen- dation from the INS regarding the alien's eligibility for relief from deportation. The INA, however, does not "otherwise specif[y]" that the determination of the admission or removal of an alien is authorized in proceedings under Section 3583(d) of Title 18. Thus, the new provision of IIRAIRA overrides the holding of the court of appeals in this case. 5. It follows that the legal issue presented in this case, i.e., the authority of the sentencing court under Section 3583(d) to enter a judicial order of deportation, will not recur in the same form after April 1987. See Br. of Court-invited Amicus Curiae 23 n.9 (suggesting that, in light of IIRAIRA, controversy presented by instant case may lack any continuing importance, and ___________________(footnotes) 5 The Court granted certiorari in the instant case on October 1, 1996. " IIRAIRA had just been enacted the preceding day and had not been "discussed in the parties' briefs at the petition stage, which were filed before that enactment. ---------------------------------------- Page Break ---------------------------------------- 10 dismissal of the writ of certiorari as improvidently granted may be warranted). That circumstance de- prives the particular controversy here of prospective likelihood of repetition. 6. It is, of course, true that judgments entered before IIRAIRA's effective date may present the same legal issue raised by petitioner. Other petitions presenting that issue are in fact pending before this Court. The Court-invited amicus curiae suggests that the Court might be able to avoid the consequences of mootness in this case by granting review in one or more of those cases. Br. of Court-invited Amicus Curiae 6 n.4. 7. The United States is currently preparing re- sponses to the petitions in those cases. The diminish- ing importance of the controversy in light of IIRAIRA, however, weighs against the Court grant- ing review in those eases simply to preserve the legal issue for review despite the mootness of this case. b. Challenges to criminal convictions are not moot even after defendants have completed service of their sentences if the conviction carries collateral legal consequences. See Carafas v. LaVallee, 391 U.S. 234 (1968) (civil and employment disabilities imposed by ___________________(footnotes) 6 Petitioner will remain in prison, under the Alabama district court's sentence, beyond the April 1, 1997, effective date of Section 304(a)(3) of the IIRAIRA. 7 See Oboh v. United States, petition for cert. pending, No. 96-6653; Bowen v. United States, petition for cert. pending, No. 96-6658. In addition to those two cases, petitions raising the issue have been filed in two more cases. See Akamiokhor v. United States, petition for cert. pending, No. 96-6898; Valdez-Mejia v. United States, petition for cert. pending, No. 96-7063. In at least some of those cases, however, the petitioner has already been deported. Those cases thus may be moot as well. ---------------------------------------- Page Break ---------------------------------------- 11 law); Sibron v. New York, 392 U.S. 40, 57 (1968) (a criminal case is moot "only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged con- viction"); Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985) (possibility of impeachment and future criminal en- hancement); Minnesota v. Dickerson, 508 U.S. 366, 371 n.2 (1993) (future determination of criminal his- tory). Challenges to criminal convictions or sentencing orders are, however, rendered moot by completion of the sentence if the particular conviction or order does not carry such collateral consequences. See Lane v. Williams, 455 U.S. 624 (1982) (dismissing as moot a challenge to a revocation of parole when, before the case could be decided by the Court, the defendants had been released); see also Broughton v. North Carolina, 717 F.2d 147 (4th Cir. 1983) (challenge to misdemeanor contempt conviction became moot upon expiration of sentence because conviction had no effect on defen- dants' civil rights and did not present a possibility of enhancement of sentence in future criminal proceed- ing, and because defendant's continued reputational interests were not sufficient to avoid mootness), cert. denied, 466 U.S. 940 (1984); Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th Cir. 1986) (per curiam) (chal- lenge to delay in release on parole rendered moot by release on parole because no collateral consequences remained from delay; possibility that defendant may be subjected to future adverse consequences because of underlying incident report was too speculative). The revoked condition of supervised release that petitioner be deported does not have any continuing collateral legal consequences for petitioner. No civil liabilities result from a revoked deportation condition ---------------------------------------- Page Break ---------------------------------------- 12 of supervised release. Nor does a revoked deportation condition of supervised release have consequences for impeachment, future criminal sentence enhancement, or employment prospects. Petitioner does not chal- lenge the conviction underlying his sentence (or the findings of supervised release violations underlying the revocation order), which might have such conse- quences. Rather, he challenges only a condition of supervised release that was never executed and that no longer exists. Cf. North Carolina v. Rice, 404 U.S. 244, 246-248 (1971) ("Nullification of a conviction may have important benefits for a defendant * * * but urging in a habeas corpus proceeding the cor- rection of a sentence already served is-another mat- ter."). 8. Nor does the district court's determination to impose a deportation condition, in the now-revoked term of supervised release, have any collateral legal consequences. The district court's determination, standing alone, would not affect any future criminal or immigration proceeding against petitioner. Peti- tioner was convicted violating 8 U.S.C. 1326 (1994), which requires proof that he is an alien who re- entered the United States illegally following a prior ___________________(footnotes) 8 Contrary to the suggestion of an amicus curiae, the order of the district court revoking petitioner's supervised release does not appear to have been based in any respect on petitioner's violation of the deportation condition of supervised release. See Br. of Amicus Curiae WLF 10 n.3. As we ex- plained in our brief, the order itself does not recite the grounds for revocation, but the probation officer's petition for revoca- tion, which serves to notify the defendant of the grounds on which revocation is being sought, cited four grounds, none of which was the fact that petitioner had not been deported. See U.S. Br. 6. ---------------------------------------- Page Break ---------------------------------------- 13 deportation. Moreover, the INS has, since the imposition of the criminal sentence in this case, independently found him to be deportable and ordered his deportation under the provisions of the INA. 9. In the face of those determinations establishing petitioner's status as a deportable alien, there is no basis for any speculation that the unexecuted condition of supervised release requiring deportation of petitioner would have any collateral effect on him in any future proceeding. * * * * * In sum, any decision by this Court that invalidated the now-revoked deportation order that was imposed as a condition of supervised release would have no ___________________(footnotes) 9 The immigration judge's order that petitioner be deported under the INA is not based on the supervised-release deportation condition. Rather, the INS order to show cause why petitioner should not be deported was based on a charge under Section 241(a)(1)(A) of the INA, 8 U.S.C. 1251(a)(1)(A) (1994), that, at the time of his entry, he was excludable because he had been previously arrested and deported and had not ob- tained. consent of the Attorney General to reenter as requir- ed under Section 212(a)(6)(B)(i) of the INA, 8 U.S.C. 1182(a)(6)(B)(i) (1994). The May 12, 1995, decision and order of the immigration judge cited that order to show cause, found that the INS had established alienage and deportability, and ruled that petitioner had waived any relief from deportation. Similarly, the June 5, 1995, warrant of deportation cites Section 241(a)(1)(A) as the basis for petitioner's deportation. Finally, the February 1, 1996, order of the immigration judge denying petitioner's motion to reopen proceedings simply rejected petitioner's claims of insufficient notice and asylum. ---------------------------------------- Page Break ---------------------------------------- 14 effect on the judgment in this case. Because the con- dition of supervised release that petitioner challenges has been revoked, the case is now moot and should be dismissed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General DECEMBER 1996 ---------------------------------------- Page Break ---------------------------------------- No. 95-8736 In the Supreme Court of the United States OCTOBER TERM, 1996 LARRY OSA OGBOMON, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT REPLY BRIEF OF UNITED STATES IN SUPPORT OF SUGGESTION OF MOOTNESS WALTER DELLINGER Acting Solicitor General Department of Justice Washington, D.C. 20530-0001 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page Honig v. Doe, 484 U.S. 305 (1988) . . . . 5 Lane v. Williams, 455 U.S. 624 (1982) . . . . 5 Stone v. INS, 115 S. Ct. 1537 (1995) . . . . 4 United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980) . . . . 4 Statutes: Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 304(a)(3), 110 Stat. 3009 (reproduced at 138 Gong. Rec. H11,798 (daily ed. Sept. 28, 1996)) (to be codified at 8 U.S.C. 1230(a)(3)) . . . . 4 Immigration and Nationality Act, 8 U.S.C. 1101 et seq.: 212(a)(6)(B)(i), 8 U.S.C. 1182(a)(6)(B)(i) (1994) . . . . 2 241(a)(1)(A), 8 U.S.C. 1251(a)(1)(A) (1994) . . . . 2 241(a)(4), 8 U.S.C. 1251(a)(4) (1994) . . . . 3 276,8 U.S.C. 1326 . . . . 2-3 18 U.S.C. 3583(d) . . . . 3 (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 NO. 95-3736 LARRY OSA OGBOMON, PETITIONER v. UNITED STATES OF AMERICA REPLY BRIEF OF UNITED STATES IN SUPPORT OF SUGGESTION OF MOOTNESS 1. a. Petitioner contends (Pet. Response 6-11) that the ease is not moot because he continues to be subject to adverse collateral consequences flowing from the "judicial order of deportation." First, he suggests (at 6-7) that the Immigration and Natu- ralization Service (INS) order of deportation that was entered against him may have been based on con- sideration of the order imposing deportation as a condition of supervised release in this case. That is incorrect. The administrative order of deportation pending against petitioner was not based on the order impos- ing deportation as a condition of supervised release in this case. The INS order to show cause, the warrant ---------------------------------------- Page Break ---------------------------------------- 2 of deportation, and the orders of the immigration judge show that petitioner was found to be deport- able under then-current Section 241(a)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. 1251(a)(1)(A). That Section applied to petitioner be- cause he was excludable at the time of entry based on the fact that he had been previously arrested and deported and reentered the United States with- out the consent of the Attorney General as required under then-current Section 212(a)(6)(B)(i), 8 U.S.C. 1182(a)(6)(B)(i). See U.S. Lodging 1a-12a. In addition, review of the tape-recorded immigration proceedings confirms that the judicial deportation order was not the basis for the finding of deportability or the admin- istrative deportation order. 1. Second, petitioner asserts (Pet. Response 7) that his INS deportation order was based on his conviction for reentry after deportation, in violation of 8 U.S.C. ___________________(footnotes) 1 We provided counsel for petitioner with a copy of the tape-recorded immigration proceedings on December 23, 1996. That tape-recording reveals that, although neither petitioner nor his immigration counsel was present at the final deporta- tion hearing on May 12, 1996, that hearing was merely a continuation of deportation proceedings that had been initiated against petitioner in Oakdale, Louisiana, where he had been incarcerated. By the time of the May 12 hearing, an immigra- tion judge already had found, at a January 4, 1995, hearing, by clear, convincing and unequivocal evidence, that petitioner was reportable under the INA based on his reentry, without con- sent of the Attorney General, after deportation. Petitioner's immigration counsel participated in that January 4 hearing and waived petitioner's presence. The only remaining issue was whether petitioner could obtain relief from deportation. Petitioner waived any claim to such relief by failing to appear at the May 12 hearing despite the fact that proper notice had been provided his immigration counsel of record. ---------------------------------------- Page Break ---------------------------------------- 3 1326, and that the earlier deportation also was based on a judicial order under 18 U.S.C. 3583(d). Thus, he reasons that the INS order would be undermined if he prevails in this Court. Petitioner's earlier deportation was not based on a judicial order of deportation under Section 3583(d). The September 5, 1991, judgment in that case (App., infra, 1a-5a) provides that petitioner was to depart the United States and that he would be in violation of the sentence if he were found in the United States after four days. Id. at 5a. Petitioner was ultimately deported by the INS on November 20, 1991, based on a March 25, 1991, order of an immigration judge. See Id. at 6-7a, 8a. That administrative order, the under- lying February 19, 1991, order to show cause, and the deportation warrant all indicate that petitioner's deportation was effected pursuant to the immigration judge's order that he be deported under then-current Section 241(a)(4) of the INA because he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct. See App., infra, 6a-11a. In any event, petitioner's argument is premised on the assertion that he is continuing to challenge his administrative deportation order (see Pet. Response 7), and that he could use a favorable ruling in this case to his advantage in the administrative proceedings. To the contrary, petitioner never challenged the administrative order on grounds related to his judi- cial deportation order. When petitioner sought re- opening of the administrative deportation proceed- ings, the only grounds he cited were the lack of proper notice and an unsubstantiated asylum claim, both of which the immigration judge found inadequate to support reopening. See U.S. Lodging 12a. And, ---------------------------------------- Page Break ---------------------------------------- 4 petitioner has not sought any further review before the Board of Immigration Appeals of his administra- tive deportation order or the denial of his motion to reopen. Thus, the administrative order is final. See Stone v. INS, 115 S. Ct. 1537, 1542 (1995). 2. b. Petitioner also notes (Pet. Response 8-11) that collateral consequences could flow from an executed order of deportation. For example, he asserts that a prior deportation may be used in a subsequent criminal history calculation or might be used in sub- sequent immigration proceedings to preclude a find- ing of good moral character or as a basis for denial of discretionary relief. Those collateral consequences, however, have no application to petitioner because his deportation order was never executed. Petitioner was not deported ___________________(footnotes) 2 Amicus curiae recognizes (Amicus Response 10-14) that the final administrative order of deportation pending against petitioner "may well deprive petitioner of any `legally cogniza- ble interest in the outcome'" of the case, thereby rendering it moot. Id. at 10 (quoting in part United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)). Amicus suggests Amicus Response 10-11), however, that the administrative order may not render the case non-justiciable because duplica- tive administrative orders of deportation are likely to render moot other cases involving other criminal aliens raising the same issue. Amicus proposes that the "capable of repetition, yet evading review" doctrine could therefore be applied here, in spite of the fact that the other cases would involve different parties. As we noted in our suggestion of mootness, however, after the April 1, 1997, effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, Div. C, 304(a)(3), 110 Stat. 3009 (reproduced at 138 Gong. Rec. H11,798 (daily ed. Sept. 28, 1996)) (to be codified at 8 U.S.C. 1230(a)(3)), cases raising the same issue will no longer arise-Section 304(a)(3) of IIRAIRA overrides the holding of the court of appeals in this case. ---------------------------------------- Page Break ---------------------------------------- 5 pursuant to the judicial deportation condition of his supervised release. And there is no possibility that petitioner will be deported in the future under that order because his supervised release was revoked and no longer exists. See Suggestion of Mootness 3-4. Petitioner provides no legal support for his sugges- tion (Pet. Response 2-3) that an order of deportation that is imposed under a statute that authorizes con- ditions of supervised release could survive after the revocation of the supervised release. 2. Amicus asserts (Amicus Response 3-4) that the order against petitioner in the Alabama district court case, that he be deported as a condition-of supervised release in that case, means that the instant case is justifiable because petitioner is reasonably likely to be subjected to the same official action again. As amicus acknowledges, the Court "generally [has] been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury." Amicus Response 3 (quoting Honig v. Doe, 484 U.S. 305, 320 (1988)). That petitioner already had engaged in the unlawful additional misconduct at the time of the supervised release revocation in the instant case does not alter the fact that the instant case should not be saved from mootness as a consequence of petition- er's unlawful conduct. Cf. Lane v. Williams, 455 U.S. 624, 633 n.13 (1982). Amicus contends (Amicus Response 3-10) that, despite the fact that petitioner did not appeal from the judicial order of deportation in the Alabama district court case, the "capable of repetition, yet evading re- view" exception to the mootness doctrine could apply here. He indicates that, even though petitioner's Ala- bama case, in fact, evaded appellate review because ---------------------------------------- Page Break ---------------------------------------- 6 petitioner did not appeal, the case might have evaded review even if petitioner had appealed because he may not have been able to obtain review by this Court before being deported. See id. at 7-8. Amicus ac- knowledges that a stay would have resolved that prob- lem, however. The simple fact is that a ruling in this case would have no direct consequence for petitioner's Alabama sentence because he did not appeal it. Moreover, any collateral relief that petitioner might seek would not only have to overcome a cause and prejudice standard (see Amicus Response 11-12 n.5), but would also have to overcome the fact that petitioner consented to the deportation condition as part of his guilty plea. For the foregoing reasons and those set forth in our suggestion of mootness, the case is now moot and should be dismissed. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JANUARY 1997 ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- [TABLE/CHART OMITTED] ---------------------------------------- Page Break ----------------------------------------