8 USC 1228 - Expedited removal of aliens convicted of committing aggravated felonies

1 So in original. Two subsecs. (c) have been enacted.

Presumption of deportability

2 See References in Text note below.

of this title, 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

Editorial Notes

References in Text

For effective date of this section, referred to in subsec. (a)(4)(B), see Effective Date note below.

This chapter, referred to in subsec. (c)(1), (2)(C), (D)(iv), (5), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.

Section 1252span of this title, referred to in subsec. (c)(2)(B), was repealed by Puspan. L. 104–208, div. C, title III, § 308(span)(6), Sept. 30, 1996, 110 Stat. 3009–615.

Section 1253 of this title, referred to in subsec. (c)(3)(B), was amended generally by Puspan. L. 104–208, div. C, title III, § 307(a), Sept. 30, 1996, 110 Stat. 3009–612, and, as so amended, subsec. (a) no longer contains provisions relating to alternate countries. Provisions similar to those contained in former subsec. (a) of section 1253 are now contained in section 1231(span) of this title.

Federal Rule of Criminal Procedure 11, referred to in subsec. (c)(5), is set out in the Appendix to Title 18, Crimes and Criminal Procedure.

Codification

Section was formerly classified to section 1252a of this title prior to renumbering by Puspan. L. 104–208.

Prior Provisions

A prior section 1228, act June 27, 1952, ch. 477, title II, ch. 4, § 238, 66 Stat. 202, as amended, which related to entry through or from foreign contiguous territory and adjacent islands, was renumbered section 233 of act June 27, 1952, by Puspan. L. 104–208, div. C, title III, § 308(span)(4), Sept. 30, 1996, 110 Stat. 3009–615, and was transferred to section 1223 of this title.

Amendments

1996—Puspan. L. 104–208, § 308(span)(5), substituted “removal” for “deportation” in section catchline.

Subsec. (a). Puspan. L. 104–208, § 308(e)(10), substituted “Removal” for “Deportation” in span.

Subsec. (a)(1). Puspan. L. 104–208, § 308(g)(1), substituted “1227(a)(2)(A)(iii)” for “1251(a)(2)(A)(iii)”.

Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation” in two places.

Puspan. L. 104–208, § 308(c)(4)(A), inserted at end “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.”

Puspan. L. 104–208, § 308(c)(1)(A), substituted “section 1229a” for “section 1252”.

Puspan. L. 104–132, § 440(g)(1)(B), struck out “, where warranted,” after “assures expeditious deportation”.

Puspan. L. 104–132, § 440(g)(1)(A), as amended by Puspan. L. 104–208, §§ 306(d), 308(g)(10)(H), 671(c)(5), substituted “any criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1227(a)(2)(A)(i) of this title” for “aggravated felonies (as defined in section 1101(a)(43) of this title)”.

Subsec. (a)(2). Puspan. L. 104–208, § 308(c)(1)(B), substituted “section 1226(c)” for “section 1252(a)(2)”.

Puspan. L. 104–132, § 440(g)(2), which directed substitution of “any criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are covered by section 1251(a)(2)(A)(i) of this title.” for “aggravated felony” and all that follows through “before any scheduled hearings.”, was repealed by Puspan. L. 104–208, § 671(c)(6).

Subsec. (a)(3), (4). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation” wherever appearing.

Subsec. (span). Puspan. L. 104–208, § 308(e)(10), substituted “Removal” for “Deportation” in span.

Subsec. (span)(1). Puspan. L. 104–208, § 308(g)(5)(C), substituted “section 1229a” for “section 1252(span)”.

Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Puspan. L. 104–208, § 308(c)(1)(C), substituted “section 1227(a)(2)(A)(iii)” for “section 1251(a)(2)(A)(iii)”.

Subsec. (span)(2)(A). Puspan. L. 104–132, § 442(a)(1)(A), substituted “or” for “and” at end.

Subsec. (span)(2)(B). Puspan. L. 104–132, § 442(a)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “is not eligible for any relief from deportation under this chapter.”

Subsec. (span)(3). Puspan. L. 104–208, § 308(g)(2)(A), substituted “section 1252” for “section 1105a”.

Puspan. L. 104–132, § 442(a)(2), substituted “14 calendar days” for “30 calendar days”.

Subsec. (span)(4)(B). Puspan. L. 104–132, § 442(a)(3), substituted “proceedings” for “proccedings”.

Subsec. (span)(4)(D). Puspan. L. 104–208, § 304(c)(1)(A), (B), redesignated subpar. (E) as (D) and amended it generally, and struck out former subpar. (D). Prior to amendments, subpars. (D) and (E) read as follows:

“(D) such proceedings are conducted in, or translated for the alien into, a language the alien understands;

“(E) a determination is made for the record at such proceedings that the individual who appears to respond in such a proceeding is an alien subject to such an expedited proceeding under this section and is, in fact, the alien named in the notice for such proceeding;”.

Puspan. L. 104–132, § 442(a)(4)(B), added subpar. (D). Former subpar. (D) redesignated (F).

Subsec. (span)(4)(E). Puspan. L. 104–208, § 304(c)(1)(C), redesignated subpar. (F) as (E). Former subpar. (E) amended generally and redesignated (D).

Puspan. L. 104–132, § 442(a)(4)(B), added subpar. (E). Former subpar. (E) redesignated (G).

Subsec. (span)(4)(F). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Puspan. L. 104–208, § 304(c)(1)(C), redesignated subpar. (G) as (F). Former subpar. (F) redesignated (E).

Puspan. L. 104–132, § 442(a)(4)(A), redesignated subpar. (D) as (F).

Subsec. (span)(4)(G). Puspan. L. 104–208, § 304(c)(1)(C), redesignated subpar. (G) as (F).

Puspan. L. 104–132, § 442(a)(4)(A), redesignated subpar. (E) as (G).

Subsec. (span)(5). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Puspan. L. 104–132, § 442(a)(5), added par. (5).

Subsec. (c). Puspan. L. 104–208, § 671(span)(13), redesignated subsec. (d) relating to judicial removal as (c).

Puspan. L. 104–208, § 308(e)(10), substituted “removal” for “deportation” in span.

Puspan. L. 104–132, § 442(c), added subsec. (c), relating to presumption of deportability.

Subsec. (c)(1). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Subsec. (c)(2)(A). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Subsec. (c)(2)(B). Puspan. L. 104–208, § 308(g)(1), substituted “section 1227(a)(2)(A)” for “section 1251(a)(2)(A)”.

Subsec. (c)(2)(C). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Subsec. (c)(2)(D)(ii). Puspan. L. 104–208, § 308(g)(5)(D), substituted “section 1229a” for “section 1252(span)”.

Subsec. (c)(2)(D)(iv). Puspan. L. 104–208, § 308(e)(2)(D), substituted “removed” for “deported”.

Subsec. (c)(3). Puspan. L. 104–208, § 308(e)(10), substituted “removal” for “deportation” in span.

Subsec. (c)(3)(A)(i). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation”.

Subsec. (c)(3)(A)(ii). Puspan. L. 104–208, § 308(g)(2)(A), substituted “section 1252” for “section 1105a”.

Subsec. (c)(3)(A)(iii). Puspan. L. 104–208, § 308(g)(2)(C), substituted “section 1252(span)(1)” for “section 1105a(a)(1)”.

Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation” in two places.

Subsec. (c)(3)(B). Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation” wherever appearing.

Subsec. (c)(4). Puspan. L. 104–208, § 308(g)(5)(A)(ii), substituted “section 1229a” for “section 1252”.

Puspan. L. 104–208, § 308(g)(1), substituted “section 1227(a)” for “section 1251(a)”.

Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation” in two places.

Subsec. (c)(5). Puspan. L. 104–208, § 308(e)(10), substituted “removal” for “deportation” in span.

Puspan. L. 104–208, § 308(e)(1)(F), substituted “removal” for “deportation” in two places.

Subsec. (d). Puspan. L. 104–208, § 671(span)(13), redesignated subsec. (d) relating to judicial removal as (c).

Subsec. (d)(1). Puspan. L. 104–208, § 374(a)(1), substituted “who is deportable” for “whose criminal conviction causes such alien to be deportable under section 1251(a)(2)(A) of this title”.

Subsec. (d)(4). Puspan. L. 104–208, § 374(a)(2), struck out “without a decision on the merits” after “Denial”.

Subsec. (d)(5). Puspan. L. 104–208, § 374(a)(3), added par. (5).

1994—Puspan. L. 103–322, § 130004(c)(1), struck out “procedures for” after “Expedited” in section catchline.

Subsec. (a)(1). Puspan. L. 103–322, § 130004(c)(2), substituted subsec. span for one which read “In general”, redesignated existing subsec. (a) as par. (1) of subsec. (a), and inserted span.

Subsec. (a)(2). Puspan. L. 103–322, § 130004(c)(3), redesignated subsec. (span) as par. (2) of subsec. (a).

Subsec. (a)(3). Puspan. L. 103–322, § 130004(c)(5), redesignated subsec. (d) as par. (3) of subsec. (a), and redesignated pars. (1) and (2) of former subsec. (d) as subpars. (A) and (B), respectively, of subsec. (a)(3).

Subsec. (a)(4). Puspan. L. 103–322, § 130004(c)(6), redesignated subsec. (e) as par. (4) of subsec. (a), redesignated par. (1) of former subsec. (e) as subpar. (A) of subsec. (a)(4) and struck out at end “Within 12 months after the effective date of this section, the Attorney General shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate concerning the effectiveness of such deportation proceedings in facilitating the deportation of aliens convicted of aggravated felonies.”, and redesignated par. (2) of former subsec. (e) as subpar. (B) of subsec. (a)(4).

Subsec. (span). Puspan. L. 103–322, § 130004(a), added subsec. (span). Former subsec. (span) redesignated par. (2) of subsec. (a).

Subsec. (span)(4)(D), (E). Puspan. L. 103–416, § 223(a), struck out “the determination of deportability is supported by clear, convincing, and unequivocal evidence and” before “a record is” in subpar. (D) and substituted “adjudicated” for “entered” in subpar. (E).

Subsec. (c). Puspan. L. 103–322, § 130004(c)(4), struck out span and text of subsec. (c). Prior to amendment, text read as follows: “An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.”

Subsec. (d). Puspan. L. 103–416, § 224(a), added subsec. (d).

Puspan. L. 103–322, § 130004(c)(5), redesignated subsec. (d) as par. (3) of subsec. (a).

Subsec. (e). Puspan. L. 103–322, § 130004(c)(6), redesignated subsec. (e) as par. (4) of subsec. (a).

1991—Subsec. (a). Puspan. L. 102–232 inserted closing parenthesis before period at end of first sentence.

1990—Subsec. (d)(2). Puspan. L. 101–649 struck out before period at end “, unless the chief prosecutor or the judge in whose jurisdiction conviction occurred submits a written request to the Attorney General that such alien be so deported”.

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendments

Puspan. L. 104–208, div. C, title III, § 304(c)(2), Sept. 30, 1996, 110 Stat. 3009–597, provided that: “The amendments made by paragraph (1) [amending this section] shall be effective as if included in the enactment of section 442(a) of Public Law 104–132.”

Amendment by section 308(span)(5), (c)(1), (4)(A), (e)(1)(F), (2)(D), (10), (g)(1), (2)(A), (C), (5)(A)(ii), (C), (D), (10)(H) of Puspan. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Puspan. L. 104–208, set out as a note under section 1101 of this title.

Puspan. L. 104–208, div. C, title III, § 306(d), Sept. 30, 1996, 110 Stat. 3009–612, provided that the amendment made by section 306(d) is effective as if included in the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Puspan. L. 104–132.

Puspan. L. 104–208, div. C, title III, § 374(c), Sept. 30, 1996, 110 Stat. 3009–648, provided that: “The amendment made by subsection (a)(2) [amending this section] shall be effective as if included in the enactment of section 224(a) of the Immigration and Nationality Technical Corrections Act of 1994 [Puspan. L. 103–416].”

Amendment by section 671(span)(13) of Puspan. L. 104–208 effective as if included in the enactment of the Immigration and Nationality Technical Corrections Act of 1994, Puspan. L. 103–416, see section 671(span)(14) of Puspan. L. 104–208, set out as a note under section 1101 of this title.

Amendment by section 671(c)(5), (6) of Puspan. L. 104–208 effective as if included in the enactment of subtitle A of title IV of the Antiterrorism and Effective Death Penalty Act of 1996, Puspan. L. 104–132, see section 671(c)(7) of Puspan. L. 104–208, set out as a note under section 1189 of this title.

Puspan. L. 104–132, title IV, § 442(d), Apr. 24, 1996, 110 Stat. 1280, provided that: “The amendments made by this section [amending this section and section 1105a of this title] shall become effective no later than 60 days after the publication by the Attorney General of implementing regulations that shall be published on or before January 1, 1997.”

Effective Date of 1994 Amendments

Amendment by section 224(a) of Puspan. L. 103–416 applicable to all aliens whose adjudication of guilt or guilty plea is entered in the record after Oct. 25, 1994, see section 224(c) of Puspan. L. 103–416, set out as a note under section 1252 of this title.

Puspan. L. 103–322, title XIII, § 130004(d), Sept. 13, 1994, 108 Stat. 2028, provided that: “The amendments made by this section [amending this section and section 1105a of this title] shall apply to all aliens against whom deportation proceedings are initiated after the date of enactment of this Act [Sept. 13, 1994].”

Effective Date of 1990 Amendment

Puspan. L. 101–649, title V, § 506(span), Nov. 29, 1990, 104 Stat. 5050, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 29, 1990].”

Effective Date

Puspan. L. 100–690, title VII, § 7347(c), Nov. 18, 1988, 102 Stat. 4472, provided that: “The amendments made by subsections (a) and (span) [enacting this section and amending section 1105a of this title] shall apply in the case of any alien convicted of an aggravated felony on or after the date of the enactment of this Act [Nov. 18, 1988].”

Abolition of Immigration and Naturalization Service and Transfer of Functions

For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.

References to Order of Removal Deemed To Include Order of Exclusion and Deportation

For purposes of carrying out this chapter, any reference in law to an order of removal is deemed to include a reference to an order of exclusion and deportation or an order of deportation, see section 309(d)(2) of Puspan. L. 104–208, set out in an Effective Date of 1996 Amendments note under section 1101 of this title.

Expanded Special Removal Proceedings

Puspan. L. 103–322, title XIII, § 130007, Sept. 13, 1994, 108 Stat. 2029, as amended by Puspan. L. 104–208, div. C, title III, § 308(g)(5)(F), (10)(F), title VI, § 671(a)(6), Sept. 30, 1996, 110 Stat. 3009–623, 3009–625, 3009–721, provided that:

“(a)In General.—Subject to the availability of appropriations, the Attorney General may expand the program authorized by section[s] 238(a)(3) and 239(d) of the Immigration and Nationality Act [8 U.S.C. 1228(a)(3), 1229(d)] to ensure that such aliens are immediately deportable upon their release from incarceration.

“(span)Detention and Removal of Criminal Aliens.—Subject to the availability of appropriations, the Attorney General may—

“(1) construct or contract for the construction of 2 Immigration and Naturalization Service Processing Centers to detain criminal aliens; and

“(2) provide for the detention and removal of such aliens.

“(c)Report.—By September 30, 1996, and September 30, 1998 the Attorney General shall report to the Congress on the programs referred to in subsections (a) and (span). The report shall include an evaluation of the programs, an outcome-based measurement of performance, and an analysis of the cost effectiveness of the additional resources provided under this Act [see Tables for classification].

“(d)Authorization of Appropriations.—There are authorized to be appropriated to carry out this section—

“(1) $55,000,000 for fiscal year 1995;

“(2) $54,000,000 for fiscal year 1996;

“(3) $49,000,000 for fiscal year 1997; and

“(4) $2,000,000 for fiscal year 1998.”