Sec. 238. expedited removal of aliens convicted of committing aggravated felonies
1,827 words·~8 min read·
/statute-compilations/comps-1376/sec-238A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
## Sec. 238 expedited removal of aliens convicted of committing aggravated felonies **[**[8 U.S.C. 1228](/us/usc/t8/s1228)**]** ###
(a)Removal273 of Criminal Aliens ####
(1)in274 general The Attorney General shall provide for the availability of special removal273 proceedings at certain Federal, State, and local correctional facilities for aliens convicted of 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, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i). 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 removal273 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. 273See the appendix in this compilation for the provisions as in effect before April 1, 1997. 274Margin so in law. The heading probably should read “In general.”. ####
(2)Implementation With respect to an alien convicted of an aggravated felony who is taken into custody by the Attorney General pursuant to section 236(c),273 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)expedited275 proceedings #####
(A)Notwithstanding any other provision of law, the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal273 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. 275Should be “Expedited”. #####
(B)Nothing in this section shall be construed as requiring the Attorney General to effect the removal273 of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.276 276§506(a) of the Immigration Act of 1990 (P.L. 101–649, Nov. 29, 1990, 104 Stat. 5050) struck “, 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” before the period at the end, effective on November 29, 1990. In addition, §512 of that Act, shown in Appendix II.A.1., authorizes appropriations for fiscal years 1991 through 1995 for 20 additional immigration judges to conduct proceedings under this subsection. ####
(4)review277 #####
(A)The Attorney General shall review and evaluate removal273 proceedings conducted under this section. 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 removal273 proceedings in facilitating the removal273 of aliens convicted of aggravated felonies. 277Should be “Review”. #####
(B)The Comptroller General shall monitor, review, and evaluate removal273 proceedings conducted under this section. ### (b)278 Removal273 of Aliens Who Are Not Permanent Residents 278This subsection
(b)was added by §130004(a) of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103–322, 108 Stat. 2026, Sept. 13, 1994), effective with respect to aliens against whom deportation proceedings are initiated after September 13, 1994, under §130004(d) of that Act. ####
(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 removal273 pursuant to the procedures set forth in this subsection or section 240.273 ####
(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 242.279 279See the appendix in this compilation for the provisions as in effect before April 1, 1997. ####
(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;280 280See the appendix in this compilation for the provisions as in effect before April 1, 1997. ##### (E)281 a record is maintained for judicial review; and 281The phrase “the determination of deportability is supported by clear, convincing, and unequivocal evidence and” was stricken by §223(a)(1) of the Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103–416, 108 Stat. 4322, Oct. 25, 1994). #####
(F)the final order of removal280 is not adjudicated282 by the same person who issues the charges. 282§223(a)(2) of the Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103–416, 108 Stat. 4322, Oct. 25, 1994) struck “entered” and inserted “adjudicated”. ####
(5)No alien described in this section shall be eligible for any relief from removal280 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)283 Judicial Removal.—283 283P.L. 104–208 (110 Stat. 722) redes
(d)as (c). Probably should be (d). See the appendix in this compilation for the provisions as in effect before April 1, 1997. ####
(1)Authority Notwithstanding any other provision of this Act, a United States district court shall have jurisdiction to enter a judicial order of removal284 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. 284See the appendix in this compilation for the provisions as in effect before April 1, 1997. ####
(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.284 #####
(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 removal284 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 240.284 ######
(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 removed284 if the Attorney General demonstrates that the alien is deportable under this Act. ####
(3)Notice, appeal, and execution of judicial order of removal.—284 #####
(A)######
(i)A judicial order of removal284 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 242.284 ######
(iii)Upon execution by the defendant of a valid waiver of the right to appeal the conviction on which the order of removal284 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 removal284 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 removal284, the Commissioner shall provide the defendant with written notice of the order of removal284, which shall designate the defendant's country of choice for removal284 and any alternate country pursuant to section 243(a). ####
(4)Denial of judicial order Denial of a request for a judicial order of removal284 shall not preclude the Attorney General from initiating removal284 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 removal284 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 removal284 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 removal284 pursuant to the terms of such stipulation.
Connectionstraces to 1
Traces to 1 document
4 references not yet in our index
- 104 Stat. 5050
- 108 Stat. 2026
- 108 Stat. 4322
- 110 Stat. 722
Citation graph
cites case law
Sec. 238
expedited removal of aliens convicted of committing aggravated felonies
Stat.104 Stat. 5050
Stat.108 Stat. 2026
Stat.108 Stat. 4322
Stat.110 Stat. 722
Cites 5Cited by 0 across 0 sources