The opinion of the court was delivered by: EDWARD R. KORMAN
CORRECTED MEMORANDUM AND ORDER
The issue presented by this case is whether unusually harsh collateral consequences that are visited by law on a defendant as a result of his conviction may provide a basis for mitigating the penal sanction that would otherwise be required by the Sentencing Guidelines. Collateral consequences are not part of the judgment of conviction and are not imposed upon the defendant for the purpose of punishing him. The effect of such consequences, however, may be as punitive as a term of incarceration. This is particularly true here where the collateral consequence is deportation and where a consequence of that consequence is a longer period of imprisonment under more severe conditions than would apply to a United States citizen convicted of the same offense.
The extraordinary harsh and disparate nature of this penalty was acknowledged by the Supreme Court in Jordan v. De George, 341 U.S. 223 (1951), where it addressed the issue of whether former Section 19(a) of the Immigration Act of 1917, which provided for deportation of an alien who had been convicted twice of a "crime involving moral turpitude," lacked sufficiently definite standards to withstand a challenge to its constitutionality based on the "void for vagueness" doctrine. Id. at 229. While this doctrine is intended to ensure adequate notice to individuals of the criminal consequences of their conduct, the Supreme Court held that it would be applied to test the constitutionality of former Section 19(a) of the Immigration Act even though "this statute does not declare certain conduct to be criminal." Id. at 230. Chief Justice Vinson explained:
We do this in view of the grave nature of deportation. The Court has stated that 'deportation is a drastic measure and at times the equivalent of banishment or exile . . . . It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty.'
Id. at 231 (citation omitted).
Respondent, because he is an alien, and because he has twice been convicted of crimes the Court holds involve 'moral turpitude,' is punished with a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts.
The threads that run through the majority and dissenting opinions in Jordan meet in the present case. The defendant, Jorge Restrepo, is an alien who enjoys the status of a permanent resident. Convicted of attempting to smuggle 562.5 grams of a substance of which 28% was heroin, Mr. Restrepo faces a sentence of 41-51 months under the Sentencing Guidelines, the same sentence a United States citizen would face under similar circumstances. Unlike a United States citizen, however, an alien who is convicted of such an offense must be deported, see 8 U.S.C.A. § 1251(a)(2)(A) and (B) (Supp. 1992), unless he meets the threshold criteria set out in the Immigration and Nationality Act that render him eligible to ask the Attorney General to exercise his discretion to suspend deportation. See 8 U.S.C.A. §§ 1182(c), 1254(a)(2) (1970 & Supp. 1992).
The defendant can meet neither the "strict threshold criteria" applicable under section 1254(a)(2), see Immigration and Naturalization Service v. Phinpathya, 464 U.S. 183, 195 (1984), nor the more lenient threshold criteria of section 1182(c), see Castillo-Felix v. Immigration and Naturalization Service, 601 F.2d 459 (9th Cir. 1979) (discussing applicability of section 1182(c) and distinguishing it from suspension of deportation under section 1254(a)(2)). Under section 1182(c), an alien must have "a lawful unrelinquished domicile of seven consecutive years" before the Attorney General can exercise his discretion to suspend deportation. See Francis v. Immigration and Naturalization Service, 532 F.2d 268, 270 (2d Cir. 1976); Variamparambil v. Immigration and Naturalization Service, 831 F.2d 1362, 1364 n.1 (7th Cir. 1987).
The presentence report here indicates that, although Mr. Restrepo entered the United States in 1985, his "lawful" domicile, as that phrase is defined, see Lok v. Immigration and Naturalization Service, 681 F.2d 107, 109-10 (2d Cir. 1982), did not commence until March 8, 1991 when he was admitted as a conditional permanent resident. Thus, even after serving his sentence, the defendant will not be able to satisfy the most lenient of the statutory requirements for obtaining discretionary relief from deportation. Moreover, even if he were eligible to seek such relief, it would, in all probability, be denied. See Blackwood v. Immigration and Naturalization Service, 803 F.2d 1165 (11th Cir. 1986); Akinyemi v. Immigration and Naturalization Service, No. 91-3348 (7th Cir. July 16, 1992). Accordingly, for the crime that he committed, Mr. Restrepo will be punished with "a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts." Jordan v. De George, 341 U.S. at 232 (Jackson, J., dissenting).
Moreover, solely because of his status as a deportable alien, the defendant's sentence will be served under circumstances that are more severe than those facing a United States citizen under similar circumstances. Unlike United States citizens who commit the same offense, who are equally culpable and who receive the identical guideline sentence, the defendant will not be eligible to serve his sentence in a minimum security facility, nor a portion of the last 10% of his sentence in a halfway house or other community custody program, including home confinement.
Unless he fits within a narrow exception, an inmate who is a "deportable alien" is also automatically included in the group of those from whom society requires protection:
Deportable Alien: An inmate who is not a citizen of the U.S. and does not meet all of the following criteria:
1. Verified strong family/community ties in the U.S.
2. Verified history of domicile (five years or more) in the U.S.
3. Verified history of stable employment in the U.S.
Non-U.S. citizen inmates who do not meet all of the above criteria will not be housed in a minimum security facility or a community corrections center unless the PSF has been waived by the Regional Director. This requirement does not apply to non-US. citizens for whom the Immigration and Naturalization Service (US INS) has determined that deportation proceedings will not be initiated.
The defendant's presentence report indicates that he entered the United States in 1985 and that he became a conditional permanent resident on March 8, 1991. He is married to a United States citizen with whom he has fathered three children.
The presentence report, however, can not "verify" the defendant's initial date of entry into the United States, nor can it "verify" his history of employment here. Accordingly, the defendant will not come within the limited group of deportable aliens who are excepted from the PSF designation.
The PSF designation is not the last of the consequences that follow solely because a defendant is a deportable alien. Some time before the end of his sentence, normally the last month, the Immigration and Naturalization Service ("INS") will file a detainer with the Bureau of Prisons. While the lodging of the detainer has no effect on the PSF classification, it will require further incarceration of the defendant in an INS detention facility while he awaits deportation proceedings that should have been undertaken while he was serving his prison sentence.
See Soler v. Scott, 942 F.2d 597, 600-01 (9th Cir. 1991), petition for cert. filed, (July 8, 1992); Letter from Arthur C. Helton, Director, Refugee Project, Lawyers Committee for Human Rights, dated July 22, 1992, at 5-9. According to a recent report of the United States General Accounting Office, the average length of time criminal aliens are detained in INS facilities is 59 days. United States General Accounting Office, Immigration Control: Immigration Policies Affect INS Detention Efforts 25 (1992); Helton App. Ex. B.