United States v. Xiang ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5071
SHAW YAN XIANG,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-94-120)
Argued: December 8, 1995
Decided: March 11, 1996
Before WILKINS and NIEMEYER, Circuit Judges, and PAYNE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
_________________________________________________________________
Affirmed as modified by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Wilkins and Judge Payne joined.
_________________________________________________________________
COUNSEL
ARGUED: Bridgett Britt Aguirre, Fuquay-Varina, North Carolina,
for Appellant. John Samuel Bowler, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, David J. Cortes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
On October 11, 1994, Shaw Yan Xiang, a citizen of China and resi-
dent alien of the United States, pled guilty to credit card fraud com-
mitted in Raleigh, North Carolina, in violation of 18 U.S.C.
§ 1029(a)(1). The district court sentenced Xiang to 16 months impris-
onment, fined him, and ordered him to pay restitution. The court also
ordered, as a condition of supervised release, "that the defendant be
deported" pursuant to 18 U.S.C. § 3583(d). The court's order contin-
ued, "The defendant shall be delivered to a duly authorized immigra-
tion official for deportation. If deported by the Immigration and
Naturalization Service, the defendant shall not illegally reenter the
United States during the period of supervised release."
Xiang interprets the district court's condition of supervised release
as a direct judicial order to deport him and contends that such an
order arrogates the executive power vested in the Attorney General to
determine Xiang's deportability. Xiang contends further that in autho-
rizing a court to deport a defendant, Congress violated the constitu-
tionally established separation of powers. He argues that "the decision
to deport or not to deport is one properly entrusted to an Immigration
judge, not a district court judge. Deportation is an administrative pro-
ceeding not a matter properly before an Article III judge." He urges
that we join the Second Circuit's decision in United States v. Olvera,
954 F.2d 788, 793 (2d Cir. 1992), holding that the Attorney General
has the sole discretion to institute deportation proceedings.
The government argues that 18 U.S.C. § 3583(d) does not authorize
the district court actually to deport a defendant as a condition of
supervised release, "but merely provides for the Immigration and Nat-
uralization Service (INS) to decide whether or not to order the appel-
lant's deportation." It argues further that that is exactly what the
district court did in this case. We agree.
Section 3583(d) of Title 18 provides in pertinent part:
If an alien defendant is subject to deportation, the court may
provide, as a condition of supervised release, that he be
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deported and remain outside the United States, and may
order that he be delivered to a duly authorized immigration
official for such deportation.
A natural reading of this language, considered in the context of the
overall scheme for the deportation of aliens, leads us to conclude that
Congress intended to permit courts to add as a condition of supervised
release deportation by the INS of defendants who are deportable and,
to that end, authorized the district court only to order that the defen-
dant be delivered to the INS. The language of § 3583(d), the applica-
tion of which is limited to defendants who are "subject to
deportation," states that the court "may provide, as a condition of
supervised release, that he be deported," and"for such deportation"
authorizes the court to order delivery of the defendant to the INS. The
statute does not authorize the court itself to order deportation directly.
This reading of § 3583(d)--that the INS must accomplish the
deportation under its established procedures and the court only orders
the delivery of the defendant to the INS for that purpose--is consis-
tent with the overall division of responsibility that Congress created
between the INS and the courts. While Congress undoubtedly has the
constitutional authority to vest deportation authority in the Third
Branch, it established the INS as part of the Executive Branch under
the Attorney General, and gave the Attorney General far reaching
authority to deport aliens, with elaborately detailed procedures for
exercising that authority. See generally 8 U.S.C. §§ 1101-1503. The
courts are brought into the process only after the Attorney General
reaches a final decision on deportability. See 8 U.S.C. § 1105a. Con-
gress made one exception to the Executive Branch's plenary role by
providing, in limited circumstances, for direct judicial deportation of
aliens convicted of aggravated felonies. See 8 U.S.C. § 1252a(d). But
even in that limited instance, Congress included the requirement that
the Attorney General must request the defendant's deportation and the
Commissioner of Immigration and Naturalization must concur. See 8
U.S.C. § 1252a(d)(2)(B). Moreover, in executing judicial deportation,
the statute requires that specified procedural safeguards be observed.
See 8 U.S.C. § 1252a(d)(2). The exception that Congress provided for
judicial deportation would be meaningless if we could now read
§ 3583(d) to authorize judicial deportation for lesser crimes without
any procedural safeguards.
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In reaching our conclusion about the proper interpretation of
§ 3583(d), we are persuaded by the reasoning of the First and Fifth
Circuits in United States v. Sanchez, 923 F.2d 236 (1st Cir. 1991), and
United States v. Quaye, 57 F.3d 447 (5th Cir. 1995), where the courts
held that § 3583(d) merely provides a means by which the district
court may order, as a condition of supervised release, the defendant's
surrender to the INS for deportation proceedings. In following the
First and Fifth Circuits, we recognize that the Eleventh Circuit has
held that § 3583(d) confers upon the judiciary the power to deport
directly and that it does not intrude upon the INS's ministerial respon-
sibility to process a person ordered deported. See United States v.
Chukwura, 5 F.3d 1420, 1423 (11th Cir. 1993), cert. denied, 115 S.
Ct. 102 (1994). That opinion, however, may currently be in some
doubt. In United States v. Oboh, 65 F.3d 900 (11th Cir. 1995), a panel
of the Eleventh Circuit concluded that it was compelled to follow
Chukwura, not because it agreed with the rationale, but because "only
the court sitting in banc may now hold otherwise." Id. at 902. On
November 13, 1995, a majority of the Eleventh Circuit voted to
vacate Oboh and rehear the case en banc. United States v. Oboh, 70
F.3d 87 (11th Cir. 1995).
While the district court in this case ordered that the defendant "be
deported" pursuant to 18 U.S.C. § 3583(d), it also directed that the
defendant "be delivered to a duly authorized immigration official for
deportation." The court added that "if deported by the Immigration
and Naturalization Service, the defendant shall not illegally reenter
the United States during the period of supervised release." (Emphasis
added). While the district court did order the defendant's deportation
as a condition of supervised release, it also recognized that the court
itself would not accomplish the deportation because it ordered the
delivery of the defendant "to a duly authorized immigration official
for deportation." To eliminate any ambiguity, however, we modify
the district court's judgment, conforming it to those entered in
Sanchez and Quaye as follows:
As a condition of supervised release, upon completion of his
term of imprisonment, the defendant is to be surrendered to
a duly-authorized immigration official for deportation in
accordance with established procedures provided by the
Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq.
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As a further condition of supervised release, if ordered
deported, the defendant shall remain outside the United
States.
As so modified, we affirm the judgment of the district court.
AFFIRMED AS MODIFIED
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