1 As the majority notes, the three other circuits to interpret §

3583(d) have held that the section, read in light of the provisions of

the INA, does not authorize judicial deportations, United States v.

Xiang, 77 F.3d 771, 772 (4th Cir. 1996); United States v. Quaye,

57 F.3d 447, 449-51 (5th Cir. 1995); United States v. Sanchez, 923

F.2d 236, 237 (1st Cir. 1991). 

BARKETT, Circuit Judge, dissenting, in which KRAVITCH,

ANDERSON, BIRCH and CARNES, Circuit Judges, join:

I believe the majority errs in adhering to United States v.

Chukwura, 5 F.3d 1420 (11th Cir. 1993), cert. denied, 115 S. Ct.

102 (1994). Like the First, Fourth, and Fifth Circuits, I believe

that 18 U.S.C. § 3583(d) provides only that a defendant who is

subject to deportation may be surrendered to the INS for

deportation proceedings in accordance with the Immigration and

Naturalization Act ("INA").1 Because the language of § 3583(d) is

subject to different interpretations, we must look to the overall

statutory scheme, and prior legislative and judicial history, which I

believe support the view that a district court may only surrender a

defendant who is subject to deportation to the INS for deportation

proceedings, not independently order the deportation. 

First, although the majority purports to rely on the "plain

language" of § 3583(d) to support its conclusion, the language of

the statute is not so plain. It provides, in relevant 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.

18 U.S.C. § 3583(d). 

Section 3583(d) does not state that the court may "order" that

the alien be deported; it instead permits the court to "provide" that

the alien be deported and remain outside of the United States. That
2

choice of words does not appear to have been inadvertent. The

two preceding sentences in § 3583(d) identify things that the court

may "order" the defendant to do or not to do as conditions of

supervised release, and the final clause of the final sentence states

that the court may "order" that the defendant be delivered to a duly

authorized immigration official for deportation. In this statutory

context, the term "provide" in the portion of the sentence at issue

here indicates that it is intended to authorize the court to "make

provision" for the alien's deportation, thereby facilitating such

action by surrendering the defendant to the INS deportation

proceedings, but not to order the INS to deport the defendant

without the attendant process established by the INA. See

Webster's Third New International Dictionary 1827 (1986)

(defining "provide").

Furthermore, § 3583(d) authorizes the court to provide that

the defendant be deported "as a condition of supervised release." 

That language similarly weighs against Chukwura's interpretation

of § 3583(d). By stating that the court may include deportation as

a condition of supervised release, the language implies that the

consequence of a failure to satisfy that condition (where, for

example, the INS does not order the defendant deported) is that the

court may revoke the defendant's supervised release pursuant to §

3583(e)(3) and require the defendant to serve the period of

supervised release in prison -- not that the court may independently
 2 For example, if the defendant is not ordered deported by the

INS -- either because he is not found to be deportable, or is granted

discretionary relief from deportation -- the sentencing court could,

in the alternative, modify the order of supervised release to delete

the deportation provision. See generally, 18 U.S.C. § 3583(e) (2). 

Under Chukwura, however, the INS has no opportunity to make

this determination, or to grant discretionary relief.

3

order the INS to deport the defendant.2 If Congress intended to

authorize a court to enter a judicial order of deportation outside the

framework of the INA, it more likely would have included such a

measure as an independent element of the sentence, rather than as a

condition of supervised release, which is limited, of course, to

those deportable alien defendants for whom supervised release is

ordered at sentencing.

Indeed, the majority fails to consider the purpose of § 3583(d)

as a whole, which provides for supervised release. Without a

provision such as the last sentence of § 3583(d), "administrative"

deportation by the INS might be regarded as inconsistent with

judicially supervised release, which requires a defendant to not leave the

judicial district without the permission of the court or probation officer. The relevant

provision, therefore, removes any doubt about the INS's authority

to deport the defendant after his period of imprisonment ends and

he is placed on supervised release, and is an efficient mechanism

by which the court "permits" the defendant to leave the judicial

district if the INS orders him to be deported. 

Interpreting § 3583(d) as simply facilitating the surrender of

defendants subject to deportation to the INS for deportation

proceedings also conforms with the uniform historical practice of

Congress conferring the authority to institute deportation
4

proceedings against an alien on Executive Branch officials. 

Congress has acted pursuant to the constitutional understanding

that the "power to expel or exclude aliens [is] a fundamental

sovereign attribute exercised by the Government's political

departments largely immune from judicial control." Shaughnessy

v. Mezei, 345 U.S. 206, 210 (1953). 

The INA, in 8 U.S.C. § 1252 and implementing regulations,

has established the administrative procedures used by the Attorney

General in determining whether an alien who is charged with being

deportable under 8 U.S.C. § 1251 is, in fact, deportable. Section

1252(b) provides that "the procedure so prescribed shall be the sole

and exclusive procedure for determining the deportability of an alien

under this section," and that "[i]n any case in which an alien is

ordered deported from the United States under the provisions of

this chapter, or of any other law or treaty, the decision of the Attorney

General shall be final." (emphasis added). See also 8 U.S.C. §

1103(a) ("The Attorney General shall be charged with the

administration and enforcement of this chapter and all other laws

relating to the immigration and naturalization of aliens, except

insofar as this chapter or such laws relate to the powers, functions,

and duties conferred upon the President, the Secretary of State, the

officers of the Department of State, or diplomatic or consular

officers"); Sale v. Haitian Centers Council, Inc., 113 S.Ct. 2549,

2559-60 (1993).

The reference to deportation in § 3583(d) is contained in a

single sentence that does not expressly carve out an exception to
 3 Even if an alien is deportable, the INA confers on the

Attorney General the authority to grant the alien asylum, or other

relief from deportation. See, e.g., 8 U.S.C. §§ 1158, 1182(c),

1253(h), 1254(a) and (e). 

5

the Attorney General's authority over immigration matters, and the

legislative history discloses no evidence of congressional intent to

do so. It is very unlikely that Congress intended through that

single sentence to displace the Attorney General's authority and

enforcement discretion in determining whether to institute

deportation proceedings against an alien, and, if found deportable,

whether to grant the alien discretionary relief.3 It is also very

unlikely that Congress, without saying so, intended § 3583(d) to

have the effect of rendering the aliens to whom it applies

altogether ineligible for such discretionary relief. As the Quaye

court noted:

The First Circuit's interpretation of § 3583(d) also

preserves Congress's long tradition of granting the

Executive Branch sole power to institute deportation

proceedings against aliens. We are unwilling to

conclude that Congress intended to undermine that

executive prerogative sub silentio in § 3583(d), or that

Congress intended by its silence to deprive aliens

deported at sentencing of such relief as alien asylum,

which the Attorney General may grant. 

Quaye, 57 F.3d at 449-50.

The background of § 3583(d) further reinforces my reading of

the statute. The initial predecessor of the current § 3583(d) was

enacted in 1931 as an amendment to the former 18 U.S.C. § 716

(1925), which governed the parole of prisoners. The amendment

provided that

where a Federal prisoner is an alien and subject to

deportation the board of parole may authorize the release
6

of such prisoner after he shall have become eligible for

parole on 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 the duly authorized

immigration official for deportation.

Act of March 2, 1931, ch. 371, 46 Stat. 1469.

The committee reports accompanying the 1931 Act explained

that because the rules governing parole required that a prisoner

remain within the jurisdiction of the court, an alien prisoner, who if

paroled would be deported, could not be paroled. The legislation

was therefore designed to make it possible for prison authorities

"to surrender the alien prisoner to immigration officials for

deportation" as soon as the prisoner became eligible for parole,

"thus shortening the time the Government must retain him in

custody." S. Rep. No. 1733, 71st Cong., 3d Sess. 1 (1931)("Senate

Report"); H. R. Rep. No. 1035, 71st Cong., 2d Sess. 1 (1930). 

The Senate Report reproduced a letter requesting passage of the

legislation from Attorney General William D. Mitchell, which

stated:

At the present time there are several

hundred inmates serving sentences in Federal

prisons who should be deported. Under the

present state of the law it has been deemed

inconsistent to grant a parole and then

immediately take the prisoner into custody

under deportation proceedings. Specific

authority to parole prisoners who are aliens

and subject to deportation seems necessary.

Senate Report at 2. The 1931 Act did not authorize the Parole

Board to order the deportation of an alien and supplant the normal

deportation procedures. It was intended, rather, to provide a
7

mechanism to grant an alien parole "and then immediately take the

prisoner into custody under deportation proceedings." Senate

Report at 2 (emphasis added). The provision was judicially

construed in that manner in Secchi v. U.S. Bureau of Immigration,

58 F. Supp. 569 (M.D. Pa. 1945), in which the court explained that

the alien's parole was "conditional for his deportation to England." 

Id. at 570. The court explained that parole

is not for the petitioner's general release from

imprisonment and can become effective only

if and when the duly authorized immigration

officials make the necessary arrangements for

the deportation of the petitioner, at which time

the prisoner shall be delivered to them. . . .

The action of the Parole Board cannot compel the

Immigration Authorities to complete deportation proceedings. 

The parole is granted in order to remove an

obstacle in the action contemplated by the

Immigration Authorities. The action of the

Parole Board is taken so that if the

Immigration Authorities desire to complete

the deportation, they may complete it

effectively without being compelled to await

the completion of the service of petitioner's

sentence.

Id. (citations omitted) (emphasis added). The provision was

subsequently recodified at 18 U.S.C. § 4204 (1952), see Act of

June 25, 1948, ch. 645, § 4204, 62 Stat. 854, and later at 18 U.S.C.

§ 4212 (1976), see Parole Commission Reorganization Act., Pub.

L. No. 94-233, § 4212, 90 Stat. 227 (Mar. 15, 1976). 

Section 4212 was repealed by the Sentencing Reform Act of

1984, which eliminated the parole system and instituted the system

of supervised release, including the current § 3583(d) at issue here. 

See Pub. L. No. 98-473, Tit. II, ch. 2, §§ 218(a)(5), 235, 98 Stat.

2027, 2031. Although the committee reports on the Sentencing
 4 The former 18 U.S.C. § 4212 (1982), as in effect when the

Sentencing Reform Act was passed, provided:

When an alien prisoner subject to

deportation becomes eligible for parole, the

Commission may authorize the release of such

prisoner on condition that such person be

deported and remain outside the United

States.

Such prisoner when his parole becomes

effective, shall be delivered to the duly

authorized immigration official for

deportation.

 5 Pursuant to Bonner v. City of Prichard, Ala., 661 F.2d 1206,

1209 (11th Cir.1981) (en banc), decisions of the former Fifth

Circuit entered prior to the split establishing the Eleventh Circuit

are binding on the Eleventh Circuit.

8

Reform Act do not specifically discuss the relevant sentence of §

3583(d) concerning deportation of aliens, it is obvious that the

sentence was patterned after the former § 4212.4 This background

suggests that § 3583(d), like its predecessor governing parole, does

not authorize a judicial order of deportation, but instead preserves

the established procedures under the authority of the INS for

effecting the deportation of an alien. 

I believe the First, Fourth, and Fifth Circuits' interpretation of

§ 3583(d) is not only truer to the overall scheme Congress

developed to deal with questions concerning immigration law, but

also consistent with the case law interpreting other sentencing

provisions. District courts historically have lacked the authority to

order the deportation of alien defendants who appear before them

for criminal sentencing. United States v. Guevara-Martinez, 597

F.2d 954, 955 n.1 (5th Cir. 1979) (holding that judiciary lacks

authority to order deportation).5 E.g., United States v. Olvera, 954
9

F.2d 788, 793-94 (2d Cir. 1992) (holding that sentencing court

cannot order deportation as part of sentence); United States v.

Jalilian, 896 F.2d 447, 448-49 (10th Cir. 1990) (holding illegal

deportation as condition of probation pursuant to 18 U.S.C. §

3563); United States v. Montoya, 891 F.2d 1273, 1293 n.24 (7th

Cir. 1989) (noting in dictum that institution of deportation

proceedings lies within sole discretion of Attorney General);

United States v. Abushaar, 761 F.2d 954, 959-61 (3d Cir. 1985)

(holding that 18 U.S.C. § 3651 does not permit banishment of alien

defendant as condition of probation); United States v. Hernandez,

588 F.2d 346, 350-52 (2d Cir. 1978) (declaring condition of

deportation illegal as special parole term); United States v.

Castillo-Burgos, 501 F.2d 217, 219-20 (9th Cir. 1974) (holding

sentence of deportation to be illegal). Subsequent congressional

action also lends support to the view that § 3583(d) does not

authorize district courts to independently order deportations. Since

Chukwura was decided, Congress amended 8 U.S.C. § 1252a(d) to

permit limited "judicial" deportation of aliens convicted of crimes

of moral turpitude or aggravated felonies, but only upon the

request of the U.S. Attorney and the concurrence of the INS. The

1994 amendment provides that

[n]otwithstanding any other provision of this

chapter, a United States district court shall have

jurisdiction to enter a judicial order of deportation at the

time of sentencing against an alien whose criminal

conviction causes such alien to be deportable under

section 1251(a)(2)(A) of this title, if such an order has

been requested by the United States Attorney with the

concurrence of the Commissioner [of the INS] and if the

court chooses to exercise such jurisdiction.
 6

 Ironically, if Bowen were convicted not of illegal reentry into

the United States and misdemeanor possession of marijuana, but a

more serious offense such as murder, he would have been entitled

to the greater procedural safeguards established by § 1252a. 

Section 1252a is inapplicable to Oboh's sentencing, however,

because it had not yet taken effect at the time Oboh entered his

guilty plea. 

10

8 U.S.C. § 1252a(d)(1) (emphasis added). 

As Quaye recognized, to read a general power of judicial

deportation into § 3583(d), in light of this intervening amendment

to § 1252a, would permit district courts to deport some aliens

convicted of relatively less serious crimes without affording them

any procedural safeguards, with the inapposite result that aliens

convicted of particularly heinous crimes would receive the more

expansive procedural checks available within the auspices of the

Attorney General and INS.6 Quaye, 57 F.3d at 450; see also Xiang,

77 F.3d at 773 ("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."). "[I]nterpretations of a statute which

would produce absurd results are to be avoided if alternative

interpretations consistent with the legislative purpose are

available." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

575, 102 S.Ct. 3245, 3252 (1982); In re Chapman, 116 U.S. 661,

667, 17 S.Ct. 677, 680 (1897) ("nothing is better settled than that

statutes should receive a sensible construction, such as will

effectuate the legislative intention, and, if possible, so as to avoid

an unjust or an absurd conclusion"). 

Accordingly, for the foregoing reasons, I do not believe
 7 Because I believe that the district court had no authority to

order Oboh deported, I do not address the majority's holding that

Oboh received adequate notice as to his deportability. By not

addressing it, I do not mean to imply agreement with the majority's

resolution of the issue.

11

district courts have the authority to independently order

deportation.7