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Main topic: Immigration Law ::: Sub topic: INA 238

INA 238 - EXPEDITED REMOVAL OF ALIENS CONVICTED OF COMMITTING AGGRAVATED FELONIES

Sec. 238 1/ [8 U.S.C. 1228]

(a) Removal of Criminal Aliens.-

(1) In general.-The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense covered in section 241 2/ (a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241 3/ (a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241 4/ (a)(2)(A)(i). 5/ Such proceedings shall be conducted in conformity with section 240 (except as otherwise provided in this section), and in a manner which eliminates the need for additional detention at any processing center of the Service and in a manner which assures expeditious removal following the end of the alien's incarceration for the underlying sentence. Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.

(2) Implementation.-With respect to an alien convicted of an 6/ any criminal offense covered in section 241(a)(2) (A)(iii) , (B) , (C) , or (D) , or any offense covered by section 241(a)(2) (A)(ii) for which both predicate offenses are covered by section 241(a)(2) (A)(i) who is taken into custody by the Attorney General pursuant to section 236(c) , the Attorney General shall, to the maximum extent practicable, detain any such felon at a facility at which other such aliens are detained. In the selection of such facility, the Attorney General shall make reasonable efforts to ensure that the alien's access to counsel and right to counsel under section 292 are not impaired.

(3) Expedited proceedings.-

(A) Notwithstanding any other provision of law, the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony before the alien's release from incarceration for the underlying aggravated felony.

(B) Nothing in this section shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.

(4) Review.-

(A) The Attorney General shall review and evaluate removal proceedings conducted under this section.

(B) The Comptroller General shall monitor, review, and evaluate removal proceedings conducted under this section. Within 18 months after the effective date of this section, the Comptroller General shall submit a report to such Committees concerning the extent to which removal proceedings conducted under this section may adversely affect the ability of such aliens to contest removal effectively.

(b) Removal of Aliens Who Are Not Permanent Residents.-

(1) The Attorney General may, in the case of an alien described in paragraph (2), determine the deportability of such alien under section 237(a)(2)(A)(iii) (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or section 240 .

(2) An alien is described in this paragraph if the alien-

(A) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced; or

(B) had permanent resident status on a conditional basis (as described in section 216) at the time that proceedings under this section commenced.

(3) The Attorney General may not execute any order described in paragraph (1) until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review under section 242.

(4) Proceedings before the Attorney General under this subsection shall be in accordance with such regulations as the Attorney General shall prescribe. The Attorney General shall provide that-

(A) the alien is given reasonable notice of the charges and of the opportunity described in subparagraph (C);

(B) the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as the alien shall choose;

(C) the alien has a reasonable opportunity to inspect the evidence and rebut the charges;

(D) 7/ a determination is made for the record that the individual upon whom the notice for the proceeding under this section is served (either in person or by mail) is, in fact, the alien named in such notice;

(E) a record is maintained for judicial review; and

(F) the final order of removal is not adjudicated by the same person who issues the charges.

(5) No alien described in this section shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General's discretion.

(c) Presumption of Deportability.-An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.

(c) 8/ Judicial Removal.-

(1) Authority.-Notwithstanding any other provision of this Act, a United States district court shall have jurisdiction to enter a judicial order of removal at the time of sentencing against an alien who is deportable, 9/ if such an order has been requested by the United States Attorney with the concurrence of the Commissioner and if the court chooses to exercise such jurisdiction.

(2) Procedure.-

(A) The United States Attorney shall file with the United States district court, and serve upon the defendant and the Service, prior to commencement of the trial or entry of a guilty plea a notice of intent to request judicial removal.

(B) Notwithstanding section 242B , the United States Attorney, with the concurrence of the Commissioner, shall file at least 30 days prior to the date set for sentencing a charge containing factual allegations regarding the alienage of the defendant and identifying the crime or crimes which make the defendant deportable under section 241(a)(2) (A).

(C) If the court determines that the defendant has presented substantial evidence to establish prima facie eligibility for relief from removal under this Act, the Commissioner shall provide the court with a recommendation and report regarding the alien's eligibility for relief. The court shall either grant or deny the relief sought.

(D) (i) The alien shall have a reasonable opportunity to examine the evidence against him or her, to present evidence on his or her own behalf, and to cross-examine witnesses presented by the Government.

(ii) The court, for the purposes of determining whether to enter an order described in paragraph (1), shall only consider evidence that would be admissible in proceedings conducted pursuant to section 240.

(iii) Nothing in this subsection shall limit the information a court of the United States may receive or consider for the purposes of imposing an appropriate sentence.

(iv) The court may order the alien deported if the Attorney General demonstrates that the alien is deportable under this Act.

(3) Notice, Appeal, and Execution of Judicial Order of Removal.-

(A) (i) A judicial order of removal or denial of such order may be appealed by either party to the court of appeals for the circuit in which the district court is located.

(ii) Except as provided in clause (iii), such appeal shall be considered consistent with the requirements described in section 242 .

(iii) Upon execution by the defendant of a valid waiver of the right to appeal the conviction on which the order of removal is based, the expiration of the period described in section 242(b)(1), or the final dismissal of an appeal from such conviction, the order of removal shall become final and shall be executed at the end of the prison term in accordance with the terms of the order. If the conviction is reversed on direct appeal, the order entered pursuant to this section shall be void.

(B) As soon as is practicable after entry of a judicial order of removal, the Commissioner shall provide the defendant with written notice of the order of removal, which shall designate the defendant's country of choice for removal and any alternate country pursuant to section 243(a) .

(4) Denial of Judicial Order.-Denial 10/ of a request for a judicial order of removal shall not preclude the Attorney General from initiating removal proceedings pursuant to section 240 upon the same ground of deportability or upon any other ground of deportability provided under section 241(a) .

(5) Stipulated judicial order of deportation.-The United States Attorney, with the concurrence of the Commissioner, may, pursuant to Federal Rule of Criminal Procedure 11, enter into a plea agreement which calls for the alien, who is deportable under this Act, to waive the right to notice and a hearing under this section, and stipulate to the entry of a judicial order of deportation from the United States as a condition of the plea agreement or as a condition of probation or supervised release, or both. The United States district court, in both felony and misdemeanor cases, and a United States magistrate judge in misdemeanor cases, may accept such a stipulation and shall have jurisdiction to enter a judicial order of deportation pursuant to the terms of such stipulation.

FOOTNOTES FOR SECTION 238

INA 238 FN 1

FN 1 Former section 238 was redesignated as section 233 and moved accordingly by § 308(b)(4) of IIRIRA . This new section 238 is former section 242A as redesignated by § 308(b)(5) of IIRIRA.

INA 238 FN 2

FN 2 Sic. Should be "237". See savings provision regarding former designations on page one of this document ( section 308(g)(1) of IIRIRA ).

INA 238 FN 3

FN 3 Sic. Should be "237". See savings provision regarding former designations on page one of this document ( section 308(g)(1) of IIRIRA ).

INA 238 FN 4

FN 4 Section 308(g)(1) of IIRIRA

INA 238 FN 5

FN 5 Section 306(d) of IIRIRA amended section 440(g) (among others) of AEDPA which in turn amends this section as shown. This amendment is effective "as if included in the enactment of [AEDPA]."

INA 238 FN 6

FN 6 Sic. Section 440(g)(2) of the AEDPA awkwardly amends this section and it references language that does not exist in section 242 A (a)(2). The referenced language is in section 242(a)(2) which apparently explains the error. What is shown in this section is what results from the awkward amendment.

INA 238 FN 7

FN 7 Subparagraph (D) and conforming amendments added by § 304(c) of IIRIRA. Changes are effective "as if included in the enactment of section 442(a) of Public Law 104-132" [AEDPA].

Sic. redesignated as subsection (c) by § 671(b)(13) of IIRIRA.

INA 238 FN 8

FN 8 Amended by § 374 of IIRIRA.

INA 238 FN 9

FN 9 Amended by § 374(a)(2) of IIRIRA which deleted the phrase "without a decision on the merits" . Amendment has a specific effective date: "as if included in the enactment of section 224(a) of the Immigration and Nationality Technical Corrections Act of 1994." IIRIRA § 374(d) .

INA 238 FN 10

FN 10 Amended by § 374(a)(2) of IIRIRA which deleted the phrase "without a decision that marks". Amendment has a specific effective date: "as if included in the enactment of section 224(a) of the Immigration Nationality Technical Corrections Act of 1994." IIRIRA §374(d).

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