Chapter 3: Immigration-Related Requirements (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. 3563(b)(21), the court may provide that the defendant “be ordered deported by a United States district court, or United States magistrate judge, pursuant to a stipulation entered into by the defendant and the United States under section 238(d)(5) of the Immigration and Nationality Act, except that, in the absence of a stipulation, the United States district court or a United States magistrate judge, may order deportation as a condition of probation, if after notice and a hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable.”

Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”

Under 18 U.S.C. § 3583(d), if the defendant is subject to deportation, the court may provide that he “remain outside the United States” and “be delivered to a duly authorized immigration official for such deportation.”

B. Sample Condition Language

You must [immediately report, continue to report, or surrender] to U.S. Immigration and Customs Enforcement and follow all their instructions and reporting requirements until any deportation proceedings are completed.

If you are ordered deported from the United States, you must remain outside the United States, unless legally authorized to re-enter. If you re-enter the United States, you must report to the nearest probation office within 72 hours after you return.

You must seek proper documentation from U.S. Immigration and Customs Enforcement authorizing you to work in the United States.

C. Purpose

1. This condition serves the statutory sentencing purposes of public protection. They also serve the statutory sentencing purpose of affording adequate deterrence to criminal conduct by ensuring that the defendant is notified of the possibility of deportation and his or her potential exposure to criminal penalties arising from violations of immigration and naturalization statutes (see, e.g., 8 U.S.C. §§ 1325 and 1326). 18 U.S.C. § 3553(a)(2)(B)-(C).
2. This condition enables the probation officer to satisfy the statutory requirements to keep informed of the conduct and condition of the defendant and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. § 3603(2)-(3).

D. Method of Implementation

1. This condition is recommended when a defendant is suspected or confirmed to be an illegal alien in the United States who may be subject to deportation proceedings, or when a defendant’s residency status is under investigation by United States Immigration and Customs Enforcement (ICE) at the time of sentencing.
2. When a defendant remains in the administrative custody of ICE following sentencing, or when a defendant is transferred to the administrative custody of ICE following service of a sentence of imprisonment, the probation officer initiates and maintains contact with ICE until he or she confirms the outcome of deportation proceedings, including the date, location, and method of deportation.  The officer documents this information in the chronological record of the case file and submits a Federal Bureau of Investigation flash notice highlighting the supervision sentence, requesting notification of new criminal conduct, and notifying law enforcement officers of the defendant’s status and the probation office’s interest in the case. 
3. The probation officer identifies the defendant’s case file as “inactive” and ceases supervision efforts.  After six months, and annually thereafter until expiration of the term of supervision, a criminal records check is conducted to detect any activity not discovered through use of the flash notice.
4. When a defendant subject to a term of supervised release illegally reenters the United States following deportation and is arrested in another district, the probation officer initiates a transfer of jurisdiction to the district court where the defendant is discovered and requests that the prosecution of any new charges be consolidated with violation proceedings.
5. When a defendant reenters the United States following deportation, or is released from administrative custody pending resolution of deportation proceedings, and reports to the probation office as required, the probation officer begins active supervision pending confirmation of the defendant’s legal presence in the jurisdiction.
6. If the probation officer confirms that the deported or temporarily released defendant is legally authorized to remain in the United States due to a formal change (or pending petition for a change) in his or her alien status, the officer secures written verification from ICE of the status change. The documentation should detail the defendant’s authorization to maintain residency in the United States and, when applicable, secure employment. The probation officer continues to actively supervise the defendant as directed by the court and coordinates with ICE until the defendant’s alien status is fully resolved.