United States v. Oboh

AMENDED*
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 94-8l54
________________________________
D.C. Docket No. l:93-003l8-CR-l
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY OLUSHOLA OBOH,
a/k/a Henry Osa Omoboh,
a/k/a James Clark a/k/a Derick Foster,
Defendant-Appellant.
________________________________
No. 95-8l43
________________________________
D.C. Docket No. l:94-00398-CR-l
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MITCHEL AUGUSTUS BOWEN,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________________________________________________
(August 8, 1996)
Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges, and HENDERSON**, Senior Circuit Judge.
-----------------------
*This amendment includes concurrences of Judges KRAVITCH,
ANDERSON, BIRCH and CARNES in the dissent of Judge BARKETT.
**Senior U.S. Circuit Judge Albert J. Henderson has elected to
participate in the decision in case No. 94-8154 pursuant to 28
U.S.C. § 46(c).
HATCHETT, Circuit Judge:
In this consolidated appeal, the en banc court decides that
it will not overturn United States v. Chukwura, 5 F.3d l420 (llth
Cir. l993), cert. denied, ll5 S. Ct. l02 (l994).
In Chukwura, a panel of this court held that l8 U.S.C. §
3583(d) authorized a district court to order the deportation of a
defendant "subject to deportation" as a condition of supervised
release. Chukwura, 5 F.3d at 1423. Prior to the panel's opinion
in Chukwura, the First Circuit held that district courts lacked
authority under section 3583(d) to order deportation and that
section 3583(d) merely permitted the district court to order the
surrender of the defendant to the Immigration and Naturalization
Service (INS) to receive process in accordance with the
Immigration and Naturalization Act. See United States v.
Sanchez, 923 F.2d 236 (lst Cir. l99l). Since Chukwura, the
Fourth and Fifth Circuits have also addressed this issue and
joined the First Circuit in holding that section 3583(d) does not
permit district courts to order deportation as a condition of
supervised release. See United States v. Xiang, 77 F.3d 77l (4th
Cir. l996); see also United States v. Quaye, 57 F.3d 447 (5th
Cir. 1995). In light of the Fourth and Fifth Circuits' recent
rejection of the panel's holding in Chukwura, a majority of
judges in regular active service voted to address this issue en
banc in these cases.
FACTS AND PROCEDURAL HISTORY
2
In March 1989, Mitchel Augustus Bowen pleaded guilty to a
two-count criminal indictment charging him with false
representation of United States citizenship in violation of 18
U.S.C. § 911 and possession of a firearm as a convicted felon in
violation of 18 U.S.C. 922(g). After accepting Bowen's plea of
guilty, the district court sentenced Bowen to a term of
imprisonment and ordered, as a condition of supervised release,
the surrender of Bowen to the Immigration and Naturalization
Service (INS) for deportation proceedings. After Bowen served
the sentence, INS began deportation proceedings. On April 15,
1993, INS returned Bowen to Jamaica, his native country. Bowen,
however, reentered the United States approximately one year
later. On October 11, 1994, INS agents received a "tip" that
Bowen was living in a hotel in Marietta, Georgia. INS agents
went to the hotel and arrested Bowen for unlawful reentry into
the United States. Pursuant to a lawful search warrant, the
agents seized approximately seven ounces of marijuana from a
briefcase located underneath the bed.
On November 3, l994, the government filed a two-count
criminal information in the Northern District of Georgia charging
Bowen in Count I with violation of 8 U.S.C. § l326, alleging that
he unlawfully reentered the United States after having been
deported. Count II of the information charged Bowen with
possession of marijuana in violation of 2l U.S.C. § 844. Bowen
subsequently entered a negotiated plea of guilty to both counts.
On January 24, l995, the district court sentenced Bowen to
3
concurrent terms of fifteen months and twelve months imprisonment
for illegal reentry and drug possession. As a condition of
supervised release, the district court ordered the deportation of
Bowen from the United States after completion of the term of
imprisonment. Bowen objected to the district court's deportation
order and requested the court to withhold its order to allow INS
to determine whether he should be deported based on his claim of
eligibility for asylum under the Immigration and Naturalization
Act.
In the other case, a confidential informant informed INS
that Henry Olushola Oboh manufactured fraudulent driver's
licenses. On June 9, l993, the confidential informant introduced
an undercover INS agent to Oboh. During this meeting, the agent
agreed to purchase two fraudulent driver's licenses from Oboh for
$600. Oboh, equipped with a portable camera, driver's licenses,
laminating machine, and a red drop cloth, took the picture of the
undercover agent and created two North Carolina licenses. A
short time later, law enforcement agents arrested Oboh.
On September l7, l993, Oboh pleaded guilty to two counts of
producing false identification documents in violation of l8
U.S.C. § l028(a)(l) in the Northern District of Georgia. On
January 28, l994, the district court sentenced Oboh to concurrent
terms of eight months imprisonment for each count. As a
condition of supervised release, the district court ordered that
the government deport Oboh from the United States pursuant to l8
U.S.C. § 3583(d), that the government deliver Oboh to the duly
4
authorized immigration official for such deportation, and that
Oboh remain in the custody of the Immigration and Naturalization
Service until deported. Oboh timely objected to the district
court's order of deportation arguing that the PSI did not include
a recommendation for deportation or any information regarding
Oboh's immigration status. With respect to Oboh's immigration
status, the presentence report (PSI) revealed that Oboh was born
in Ibadan, Nigeria, on December 2, l952, and entered the United
States in l974.
Oboh and Bowen filed separate appeals challenging the
district court's authority to deport as a condition of supervised
release under l8 U.S.C. § 3583(d). Oboh also challenges the
district court's determination that he was subject to
deportation. This court on its own motion consolidated these
cases for the purpose of this appeal.
DISCUSSION
In Chukwura, a panel of this court addressed for the first
time in this circuit the question of whether section 3583(d)
authorizes a district court to order the deportation of a
defendant "subject to deportation" as a condition of supervised
release. Chukwura, 5 F.3d at 1420. After reviewing the plain
language of section 3583(d), the Chukwura panel concluded that
Congress intended to grant district courts the authority to
deport defendants "subject to deportation" as a condition of
supervised release. Chukwura, 5 F.3d at l423. Before the panel,
the government argued that the plain language of the statute
5
should be followed. Now, appellants, Oboh and Bowen, and the
government contend on appeal that Chukwura was wrongly decided
and urge this en banc court to overrule Chukwura. Recognizing
that only this court sitting en banc or a Supreme Court decision
can overrule a prior decision of this circuit, we agreed to
address this issue. Bonner v. City of Prichard, 66l F.2d l206,
l209 (llth Cir. l98l) (en banc).
We begin our analysis as the panel did in Chukwura and
examine the plain language of section 3583(d). Section 3583(d)
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 deported and remain outside the United
States, and may order that he be delivered to a duly authorized
immigration official for such deportation." l8 U.S.C. § 3583(d)
(l988). We find this language clear and unequivocal. The
language states that a sentencing court may require that a
defendant "subject to deportation" be deported as a condition of
supervised release and order the surrender of the defendant to
INS for such deportation. This court "must presume that a
legislature says in a statute what it means and means in a
statute what it says there." Connecticut Nat'l Bank v. Germain,
503 U.S. 249, 253-54 (1992). "When the words of a statute are
unambiguous, then, this first canon is also the last: ``judicial
inquiry is complete.'" Germain, 503 U.S. at 254 (quoting Rubin
v. United States, 449 U.S. 424, 430 (1981)); see also United
States v. McLymont, 45 F.3d 400, 40l (llth Cir.) (the plain
6
meaning of a statute controls unless the language of the statute
is ambiguous or would lead to an absurd result), cert. denied,
ll5 S. Ct. l723 (1995); Williams v. NEC Corp., 93l F.2d l493,
l498 (llth Cir. l99l) (same). Despite the plain language of this
statute, appellants and the government now argue to the en banc
court that Congress did not intend to grant district courts
authority to deport because the plain meaning of section 3583(d)
would in effect deny defendants the opportunity to challenge a
deportation order under the administrative procedures of the
Immigration and Naturalization Act. 8 U.S.C. §§ ll0l-l557
(l994). In support of their argument, they note that other
circuits addressing this issue have held that section 3583(d)
merely authorizes the district court to order the surrender of a
defendant to INS for deportation proceedings in accordance with
the Immigration and Naturalization Act. The First, Fourth, and
Fifth Circuits have each accepted arguments similar to the
arguments appellants and the government make in this case.
Consequently, we turn our attention to the decisions in those
circuits.
The First Circuit in United States v. Sanchez was the first
to address the issue of whether section 3583(d) authorized
district courts to order deportation as a condition of supervised
release. Sanchez, 923 F.2d 236. In Sanchez, the district court
ordered the defendant upon his release from confinement to "``be
deported in accordance with l8 U.S.C. [§] 3583(d).'" Sanchez,
923 F.2d at 237. On appeal, the defendant argued that the
7
district court entered an invalid order because a reasonable
person could interpret the order to mean that the government
could deport him without a INS deportation hearing. The First
Circuit agreed. Finding "no indication of a contrary legislative
design," the Sanchez court read section 3583(d) in conjunction
with the provisions of the Immigration and Naturalization Act.1
Sanchez, 923 F.2d at 237.
The Fifth Circuit also addressed this issue in United States
v. Quaye and held that courts lacked authority to order
deportation under section 3583(d). Quaye, 57 F.3d 447. In
explaining its holding, the Quaye court noted that Congress had
not granted the Judicial Branch authority to deport at anytime
prior to the enactment of section 3583(d). Quaye, 57 F.3d at
449-50. The court also reasoned that the history of the
predecessor of section 3583(d), along with prior absence of
congressional authority for judicial deportation, supported the
conclusion that Congress never intended to alter the traditional
allocation of "deportation" power between the Executive and
1
The Sanchez court amended the district court's order to
state:
As a condition of supervised release upon the
completion of his term of imprisonment the defendant is
to be surrendered to a duly authorized immigration
official for deportation in accordance with the
established procedures provided by the Immigration and
Naturalization Act, 8 U.S.C. §§ ll0l et seq. As
further condition of supervised release if ordered
deported defendant shall remain outside the United
States.
Sanchez, 923 F.2d at 237.
8
Judicial Branches of government.2 The Quaye court noted that
section 3583(d)'s predecessor, enacted in l93l,
permitted deportation of an alien prisoner in spite of
the then-current parole rule that demanded that a
prisoner remain within the court jurisdiction. Far
from empowering the Parole Board to usurp the Executive
Branch's deportation power, the 1931 Act only provided
a means by which an alien could be deported upon
parole.
Quaye, 57 F.3d at 450.3 Based on the similarity of the language
in the 1931 Act and section 3583(d), the Quaye court found that
section 3583(d) codified the l93l Act. Quaye, 57 F.3d at 450.
Consequently, it concluded that section 3583(d) only "paves the
way for Executive [B]ranch deportation proceedings" and "does not
2
Specifically, the Quaye court stated:
We insist on greater clarity of purpose when a
statute would be read to upset a status quo long in
place. Indeed, here, the history of the statute is a
powerful argument that Congress never intended to alter
this traditional allocation of power between the
Article II and Article III branches of government.
Quaye, 57 F.3d at 450.
3
The 1931 Act, the predecessor to section 3583(d), provides
in pertinent part:
where a Federal prisoner is an alien and subject to
deportation the [B]oard of [P]arole may authorize the
release of such prisoner after he shall have become
eligible for parole on [the] condition that he be
deported and remain outside of the United States and
all places subject to its jurisdiction, and upon such
parole becoming effective said prisoner shall be
delivered to duly authorized immigration official for
deportation.
Quaye, 57 F.3d at 450 (quoting Law of March 2, l93l, ch. 37l, 46
Stat. l469).
9
permit courts to order deportation alone." Quaye, 57 F.3d at
450.
Even more recently, the Fourth Circuit in United States v.
Xiang interpreted the meaning of section 3583(d) "in the context
of the overall scheme for the deportation of aliens" and held
that district courts lack authority to order deportation as a
condition of supervised release. Xiang, 77 F.3d at 772. In
explaining its holding, the court in Xiang also found that its
interpretation of section 3583(d) adhered to the "division of
responsibility that Congress created between the INS and the
court." Xiang, 77 F.3d at 773.
Like other courts that have addressed this issue, we believe
it is instructive to look at the allocation of the power between
the Executive and Judicial Branches with respect to deportation
in determining whether Congress intended to grant courts
authority to deport when it enacted section 3583(d). The First,
Fourth, and Fifth Circuits' analysis, however, fails to recognize
important congressional action that occurred before and after the
enactment of section 3583(d). As previously noted, the Executive
Branch, prior to the enactment of section 3583(d), had exclusive
authority to order the deportation of a convicted alien "subject
to deportation."4 The Executive Branch's authority to deport,
4
Article I, Section 8, Clause 3 of the Constitution grants
Congress exclusive authority to formulate the United States
immigration policy. Congress enacted its first law dealing with
deportation in l798 with the passage of the Alien Act of June 25,
l798. Frank L. Auerbach, Immigration Laws of the United States l
(Bobbs-Merrill Co., Inc. l955). The l798 Act authorized the
President to deport aliens who he "deemed dangerous" to the
10
however, was not unlimited. The Judicial Branch, for over
seventy-five years, possessed the power to thwart INS's ability
to deport when the grounds for deportation involved a single
conviction of a crime of moral turpitude which resulted in a
sentence exceeding one year or where the alien subject to
deportation committed two unrelated crimes of moral turpitude.
See United States v. Sanchez-Guzman, 744 F. Supp. 997, 999 n.5
(E.D. Wash. l990). Under such circumstances, a district court
could issue a judicial recommendation against deportation (JRAD)
to INS to prevent INS from finding an alien deportable or
excludable on the basis of that conviction.5 A JRAD once
United States. Auerbach, at 2. This Act expired in l800. From
l798 to the enactment of section 3583(d) in l987, the Executive
Branch retained exclusive authority to order the deportation of
aliens.
5
In l940, for example, 8 U.S.C. § l55 provided in pertinent
part:
The provision of this section respecting the
deportation of aliens convicted of a crime involving
moral turpitude shall not apply to one who has been
pardoned, nor shall deportation be made or directed if
the court, or a judge thereof, sentencing such alien
for such crime shall, at the time of imposing judgment
or passing sentence or within thirty days thereafter,
due notice having first been given to representatives
of the state, make a recommendation to the Secretary of
Labor that such alien shall not be deported in
pursuance of this subchapter.
United States ex rel. Santarelli v. Hughes, ll6 F.2d 6l3, 6l6
n.l5 (3d Cir. 1940) (quoting 8 U.S.C.A. § l55). INS at that time
was under the direction of the Labor Department. On June 14,
1940, Congress transferred all functions and powers relating to
immigration and nationality law to the Department of Justice.
Auerbach, at 21. Title 8 U.S.C. § l25l subsequently replaced
section l55 and limited the application of JRADs to crimes of
moral turpitude not involving narcotic offenses. See 8 U.S.C. §§
1251(a)(1), (b)(2).
11
properly entered with respect to a conviction absolutely barred
INS from using that conviction as a basis for deportation.
United States v. Bodre, 948 F.2d 28, 30 (lst Cir. l99l). In
fact, even appellate courts lacked authority to reverse the
district court's grant of JRAD. Bodre, 948 F.2d at 34.
On November 29, l990, the Immigration Act of l990, section
505(a), however, abolished the sentencing judge's power to issue
JRADs. See Immigration Act of 1990, Pub. L. No. 101-649, §
505(a). Three years prior to the abolishment of JRADs Congress
enacted section 3583(d).6 The plain meaning of section 3583(d)
taken together with the abolishment of JRADs, a longstanding
mainstay in the criminal process, not only persuades us that
Congress intended to enable district courts to order the
deportation of defendants "subject to deportation," but in fact
favors such deportation when either the Executive or Judicial
Branch deems it appropriate.
In further support of our conclusion, we note that since our
holding in Chukwura Congress has amended the Immigration and
Naturalization Act to give district courts the power to order the
deportation of alien defendants upon the request of the United
States Attorney with concurrence of the Commissioner of INS.7
6
Section 3583(d) became effective on November 1, 1987.
7
The district court, however, does not have to grant the
government's motion. See 8 U.S.C. § 1252a(d)(1) (providing for
judicial deportation "if the court chooses to exercise such
jurisdiction"). Upon the denial of the United States Attorney's
request, the government may appeal the district court's decision
as well as seek deportation through INS's administrative
proceedings. See 8 U.S.C. § 1252a(d)(3), (4).
12
See 8 U.S.C. § l252a(d) (l994). As a result of section l252a(d),
the Executive Branch can now effectuate the deportation of a
defendant "subject to deportation" through a judicial rather than
an administrative proceeding if the government meets certain
procedural requirements. See 8 U.S.C. § 1252a(d)(2) (1994).
In response to our holding today, appellants and the
government argue that giving effect to the plain meaning of
section 3583(d) renders the Immigration and Naturalization Act's
procedural requirements meaningless, asserting that section
3583(d) authorizes judicial deportation without procedural
safeguards. We reject this argument noting that procedural
safeguards already exist in the sentencing process through
appellate review of the conviction and the sentence. Although we
acknowledge that procedural safeguards exist in the sentencing
process, we do not contend that these safeguards afford
defendants recourse from deportation equal to that available
under the Immigration and Naturalization Act. This matter,
however, is for Congress and not this court to decide. As
Justice Frankfurter stated in Harisiades v. Shaughnessy:
The conditions of entry of every alien, the particular
classes of aliens that shall be denied entry
altogether, basis for determining such classification,
the right to terminate hospitality to aliens, the
grounds on which such determination shall be based,
have been recognized as matters solely for the
responsibility of the Congress and wholly outside the
power of this Court to control.
Shaughnessy, 342 U.S. 580, 596-97 (l952) (Frankfurter, J.,
concurring). For this reason, we interpret section 3583(d) in
accordance with its plain language and reaffirm Chukwura's
13
holding that section 3583(d) authorizes district courts to deport
defendants "subject to deportation" as a condition of supervised
release. In reaching this holding, we emphasize that deportation
under this provision is a condition of supervised release and not
a sentence. We also note that defendants "subject to
deportation" have no constitutional or statutory right to remain
in this country. Shaughnessy, 342 U.S. at 586-87. Their "status
within the country . . . is [merely] a matter of permission and
tolerance." Shaughnessy, 342 U.S. at 586-87.
In this appeal, Oboh also argues that the district court
failed to give him notice and an opportunity to present evidence
or argument that he is not "subject to deportation."8 At the
sentencing hearing, the government presented an INS document
revealing that Oboh entered the United States unlawfully.
Although, Oboh objected to the introduction of this document
because the government did not give him notice of the document
prior to the hearing, Oboh did not argue that he legally entered
this country. Moreover, Oboh does not argue that the district
court erred in finding that he unlawfully entered the United
States. We therefore summarily reject Oboh's argument that the
district court's order of deportation denied him due process.
The plain language of section 3583(d) gave Oboh sufficient notice
that the district court could deport him as a condition of
8
Bowen does not challenge the fact that he is "subject to
deportation" or that he failed to receive adequate notice or an
opportunity to be heard as to his eligibility for relief under
the Immigration and Naturalization Act.
14
supervised release upon a finding that he was "subject to
deportation." Accordingly, we affirm the district court's
decisions ordering the deportation of Oboh and Bowen as
conditions of supervised release.
AFFIRMED
15