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U.S. Code as of:
01/03/05
Section 1228. Expedited removal of aliens convicted of committing aggravated felonies
(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 1227(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. Such
proceedings shall be conducted in conformity with section 1229a
of this title (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 aggravated felony who
is taken into custody by the Attorney General pursuant to section
1226(c) of this title, 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 1362 of this title 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 1227(a)(2)(A)(iii) of this title (relating to conviction of
an aggravated felony) and issue an order of removal pursuant to the
procedures set forth in this subsection or section 1229a of this
title.
(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 1186a of this title) 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 1252 of this title.
(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) 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) (!1) Presumption of deportability
An alien convicted of an aggravated felony shall be conclusively
presumed to be deportable from the United States.
(c) (!1) Judicial removal
(1) Authority
Notwithstanding any other provision of this chapter, 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, 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 1252b (!2) 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 section 1227(a)(2)(A) of this title.
(C) If the court determines that the defendant has presented
substantial evidence to establish prima facie eligibility for
relief from removal under this chapter, 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 1229a of this title.
(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 removed if the Attorney
General demonstrates that the alien is deportable under this
chapter.
(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
1252 of this title.
(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
1252(b)(1) of this title, 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 1253(a) (!2) of this title.
(4) Denial of judicial order
Denial of a request for a judicial order of removal shall not
preclude the Attorney General from initiating removal proceedings
pursuant to section 1229a of this title upon the same ground of
deportability or upon any other ground of deportability provided
under section 1227(a) of this title.
(5) Stipulated judicial order of removal
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 chapter, to waive the right to notice and a
hearing under this section, and stipulate to the entry of a
judicial order of removal 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 removal
pursuant to the terms of such stipulation.
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