The opinion of the court was delivered by: SIFTON
For the reasons stated below, the departure application is granted, and defendant's base offense level will be reduced by one point.
Aliens convicted of trafficking in a controlled substance are aggravated felons, 8 U.S.C. § 1101(a)(43)(B), and are thus deportable, 8 U.S.C. § 1251(a)(2)(A)(iii),
upon completion of their prison sentences, 8 U.S.C. § 1252a(a)(3)(B). The Immigration and Naturalization Service ("INS") is responsible for deporting aggravated felons and may detain the aggravated felons until their deportation. Starting April 1, 1997, the INS will lose its discretion not to detain aggravated felons and will be required to detain until deportation all aggravated felons who have completed their periods of incarceration. See Act of Sept. 30, 1996, Pub. L. No. 104-208, 110 Stat. 3009. Such detention should, as a legal matter, occur rarely because the Attorney General is under a statutory duty to "provide for the initiation and, to the extent possible, the completion of deportation 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." 8 U.S.C. § 1252a(a)(3)(A).
As a practical matter, the deportation of an alien convicted of an aggravated felony is a lengthy administrative process. First, the alien receives an order to show cause as to why he should not be deported. The order to show cause must be served on the alien and must provide adequate notice of the charges against him. See 8 C.F.R. § 242.1(a)-(c). Therefore, the alien is entitled to a hearing before an immigration judge. At the hearing, the alien has the right to be represented by counsel, to hear the evidence against him, and to present evidence. See 8 C.F.R. § 242.16. Once the immigration judge has made the factual and legal findings necessary for deportation, the alien has the right to appeal that decision to the Board of Immigration Appeals. See 8 C.F.R. § 242.21(a). The Board's decision is the final administrative decision. While judicial review of the Board's decisions is generally available, there is no judicial review for those aliens found deportable because of a criminal conviction involving the trafficking of controlled substance. See 8 U.S.C. § 1252(a)(2)(C).
The lengthy deportation process has created substantial administrative problems for the INS. The INS has been unable to meet its statutory responsibility to deport aggravated felons expeditiously after their term of incarceration ends. According to the United States General Accounting Office, aliens convicted of a crime spent an average of 59 days in INS detention facilities after their term of incarceration ended and prior to their deportation. See United States v. Restrepo, 802 F. Supp. 781, 784 (E.D.N.Y. 1992) (citing United States General Accounting Office, Immigration Control: Immigration Policies Affect INS Detention Efforts 25 (1992)), rev'd, 999 F.2d 640 (2d Cir. 1993).
In addition to the difficulty in expeditiously deporting aliens convicted of a crime, the lengthy deportation process impacts INS' ability to detain all aliens convicted of a crime until deported. Despite the statutory mandate to do so, effective April 1, 1997, the INS lacks the space necessary to detain all of those aliens who have completed their terms of incarceration and who have not completed the deportation process. For 1997, INS plans to detain and deport 93,000 criminal and illegal aliens but has only 9,000 beds available in its detention facilities. See Oversight Hearing on the Removal of Criminal and Illegal Aliens Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. (1996) (statement of David S. Martin, General Counsel, Immigration and Naturalization Service). INS' inability to meet its statutory duty of mandatory detention of aggravated felons led the INS to ask Congress to restore the discretion once vested in the INS to decide whether or not an alien convicted of a crime should be detained. See id.
The administrative problems discussed above involve only contested deportation proceedings. By not contesting his deportation, the alien can himself significantly reduce the time and complexity of the deportation process. While the INS must still issue an order to show cause as to why the individual should not be deported, 8 C.F.R. § 242.1(a), an alien can stipulate to his own deportation. In the stipulation the alien concedes his deportability, waives his right to a hearing, waives all discretionary forms of relief from deportability, and waives his right to appeal the immigration judge's order. See 8 C.F.R. § 3.25(b). The immigration judge, without the presence of either the alien or the representative from the government, examines the stipulation and issues an order of deportation if it appears that the alien voluntarily, knowingly, and intelligently entered into the stipulation. See id.
Because of the advantages of an uncontested deportation, the United States Attorney for the Eastern District of New York implemented a policy by which as part of plea negotiations criminal defendants were encouraged to stipulate to their deportability at the same time. See Letter from Zachary W. Carter, United States Attorney, to Hon. Charles P. Sifton, Chief Judge of the Eastern District of New York 1 (Jan. 29, 1996) [ hereinafter Letter from Zachary Carter].
"The goal of these plea provisions is to expedite the deportations of criminal aliens, thereby saving government and judicial resources and minimizing the time which criminal aliens must spend in INS custody awaiting deportation after they have completed their sentences." Id.
In exchange for the stipulation of deportability, the prosecutors themselves asked the sentencing court to give the defendant a one-level downward departure from the Sentencing Guidelines. See id. at 3. The asserted rationale for requesting the downward departure is that the United States Attorney "believe[s] that a downward departure is justified on the ground that the defendant's acknowledgement of deportability with respect to his or her immigration status, thereby obviating deportation proceedings, is a sort of acceptance of responsibility not contemplated by the Guidelines." Id.
Here, Ramnath has agreed to stipulate to his own deportation. However, the prosecutor has not requested a one-point reduction in Ramnath's base offense level because Ramnath did not plead ...