I

103D CONGRESS

1ST SESSION H. R. 1459

To amend the Immigration and Nationality Act to expand the definition

of ‘‘aggravated felony’’, to eliminate the administrative deportation hearing and review process for aliens convicted of aggravated felonies who

are not permanent residents, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 24, 1993

Mr. MCCOLLUM (for himself, Mr. MOORHEAD, Mr. SMITH of Texas, Mr.

GALLEGLY, and Mrs. ROUKEMA) introduced the following bill; which was

referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to expand

the definition of ‘‘aggravated felony’’, to eliminate the

administrative deportation hearing and review process

for aliens convicted of aggravated felonies who are not

permanent residents, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Criminal Aliens Depor5 tation Act of 1993’’.
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1 SEC. 2. EXPANSION IN DEFINITION OF ‘‘AGGRAVATED FEL2 ONY’’.

3 (a) EXPANSION IN DEFINITION.—Section 101(a)(43)

4 of the Immigration and Nationality Act (8 U.S.C.

5 1101(a)(43)) is amended to read as follows:

6 ‘‘(43) The term ‘aggravated felony’ means—

7 ‘‘(A) murder;

8 ‘‘(B) any illicit trafficking in any con9 trolled substance (as defined in section 102 of

10 the Controlled Substances Act), including any

11 drug trafficking crime as defined in section

12 924(c) of title 18, United States Code;

13 ‘‘(C) any illicit trafficking in any firearms

14 or destructive devices as defined in section 921

15 of title 18, United States Code, or in explosive

16 materials as defined in section 841(c) of title

17 18, United States Code;

18 ‘‘(D) any offense described in (i) section

19 1956 of title 18, United States Code (relating

20 to laundering of monetary instruments) or (ii)

21 section 1957 of such title (relating to engaging

22 in monetary transactions in property derived

23 from specific unlawful activity) if the value of

24 the funds exceeded $100,000;

25 ‘‘(E) any offense described in—
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1 ‘‘(i) subsections (h) or (i) of section

2 842, title 18, United States Code, or sub3 section (d), (e), (f), (g), (h), or (i) of sec4 tion 844 of title 18, United States Code

5 (relating to explosive materials offenses),

6 ‘‘(ii) paragraph (1), (2), (3), (4), or

7 (5) of section 922(g), or section 922(j),

8 section 922(n), section 922(o), section

9 922(p), section 922(r), section 924(b), or

10 section 924(h) of title 18, United States

11 Code (relating to firearms offenses), or

12 ‘‘(iii) section 5861 of title 26, United

13 States Code (relating to firearms offenses);

14 ‘‘(F) any crime of violence (as defined in

15 section 16 of title 18, United States Code, not

16 including a purely political offense) for which

17 the term of imprisonment imposed (regardless

18 of any suspension of such imprisonment) is at

19 least 5 years;

20 ‘‘(G) any theft offense (including receipt of

21 stolen property) or any burglary offense, where

22 a sentence of 5 years imprisonment or more

23 may be imposed;

24 ‘‘(H) any offense described in section 875,

25 section 876, section 877, or section 1202 of
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1 title 18, United States Code (relating to the de2 mand for or receipt of ransom);

3 ‘‘(I) any offense described in section 2251,

4 section 2251A or section 2252 of title 18, Unit5 ed States Code (relating to child pornography);

6 ‘‘(J) any offense described in—

7 ‘‘(i) section 1962 of title 18, United

8 States Code (relating to racketeer influ9 enced corrupt organizations), or

10 ‘‘(ii) section 1084 (if it is a second or

11 subsequent offense) or section 1955 of

12 such title (relating to gambling offenses),

13 where a sentence of 5 years imprisonment or

14 more may be imposed;

15 ‘‘(K) any offense relating to commercial

16 bribery, counterfeiting, forgery or trafficking in

17 vehicles whose identification numbers have been

18 altered, where a sentence of 5 years imprison19 ment or more may be imposed;

20 ‘‘(L) any offense—

21 ‘‘(i) relating to the owning, control22 ling, managing or supervising of a pros23 titution business,

24 ‘‘(ii) described in section 2421, section

25 2422, or section 2423 of title 18, United
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1 States Code (relating to transportation for

2 the purpose of prostitution) for commercial

3 advantage, or

4 ‘‘(iii) described in sections 1581

5 through 1585, or section 1588, of title 18,

6 United States Code (relating to peonage,

7 slavery, and involuntary servitude);

8 ‘‘(M) any offense relating to perjury or

9 subornation of perjury where a sentence of 5

10 years imprisonment or more may be imposed;

11 ‘‘(N) any offense described in—

12 ‘‘(i) section 793 (relating to gathering

13 or transmitting national defense informa14 tion), section 798 (relating to disclosure of

15 classified information), section 2153 (relat16 ing to sabotage) or section 2381 or section

17 2382 (relating to treason) of title 18, Unit18 ed States Code, or

19 ‘‘(ii) section 421 of title 50, United

20 States Code (relating to protecting the

21 identity of undercover intelligence agents);

22 ‘‘(O) any offense—

23 ‘‘(i) involving fraud or deceit where

24 the loss to the victim or victims exceeded

25 $200,000; or
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1 ‘‘(ii) described in section 7201 of title

2 26, United States Code (relating to tax

3 evasion), where the tax loss to the Govern4 ment exceeds $200,000;

5 ‘‘(P) any offense described in section

6 274(a)(1) of title 18, United States Code (relat7 ing to alien smuggling) for the purpose of com8 mercial advantage;

9 ‘‘(Q) any violation of section 1546(a) of

10 title 18, United States Code (relating to docu11 ment fraud), for the purpose of commercial ad12 vantage; or

13 ‘‘(R) any offense relating to failing to ap14 pear before a court pursuant to a court order

15 to answer to or dispose of a charge of a felony,

16 where a sentence of 2 years or more may be im17 posed;

18 or any attempt or conspiracy to commit any such

19 act. Such term applies to offenses described in this

20 paragraph whether in violation of Federal or State

21 law and applies to such offenses in violation of the

22 laws of a foreign country for which the term of im23 prisonment was completed within the previous 15

24 years.’’.
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1 (b) EFFECTIVE DATE.—The amendments made by

2 this section shall apply to all convictions entered before,

3 on, or after the date of enactment of this Act.

4 SEC. 3. DEPORTATION PROCEDURES FOR CERTAIN CRIMI5 NAL ALIENS WHO ARE NOT PERMANENT

6 RESIDENTS.

7 (a) ELIMINATION OF ADMINISTRATIVE HEARING FOR

8 CERTAIN CRIMINAL ALIENS.—Section 242A of the Immi9 gration and Nationality Act (8 U.S.C. 1252a) is amended

10 by adding at the end the following:

11 ‘‘(c) DEPORTATION OF ALIENS WHO ARE NOT PER12 MANENT RESIDENTS.—

13 ‘‘(1) Notwithstanding section 242, and subject

14 to paragraph (5), the Attorney General may issue a

15 final order of deportation against any alien described

16 in paragraph (2) whom the Attorney General deter17 mines to be deportable under section

18 241(a)(2)(A)(iii) (relating to conviction of an aggra19 vated felony).

20 ‘‘(2) An alien is described in this paragraph if

21 the alien—

22 ‘‘(A) was not lawfully admitted for perma23 nent residence at the time that proceedings

24 under this section commenced, or
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1 ‘‘(B) had permanent resident status on a

2 conditional basis (as described in section 216)

3 at the time that proceedings under this section

4 commenced.

5 ‘‘(3) The Attorney General may delegate the

6 authority in this section to the Commissioner or to

7 any District Director of the Service.

8 ‘‘(4) No alien described in this section shall be

9 eligible for—

10 ‘‘(A) any relief from deportation that the

11 Attorney General may grant in his discretion,

12 or

13 ‘‘(B) relief under section 243(h).

14 ‘‘(5) The Attorney General may not execute any

15 order described in paragraph (1) until 14 calendar

16 days have passed from the date that such order was

17 issued, in order that the alien has an opportunity to

18 apply for judicial review under section 106.’’.

19 (b) LIMITED JUDICIAL REVIEW.—Section 106 of the

20 Immigration and Nationality Act (8 U.S.C. 1105a) is

21 amended—

22 (1) in the first sentence of subsection (a), by in23 serting ‘‘or pursuant to section 242A’’ after ‘‘under

24 section 242(b)’’;
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1 (2) in subsection (a)(1) and subsection (a)(3),

2 by inserting ‘‘(including an alien described in section

3 242A)’’ after ‘‘aggravated felony’’; and

4 (3) by adding at the end the following new sub5 section:

6 ‘‘(d) Notwithstanding subsection (c), a petition for

7 review or for habeas corpus on behalf of an alien described

8 in section 242A(c) may only challenge whether the alien

9 is in fact an alien described in such section, and no court

10 shall have jurisdiction to review any other issue.’’.

11 (c) TECHNICAL AND CONFORMING CHANGES.—Sec12 tion 242A of the Immigration and Nationality Act (8

13 U.S.C. 1252a) is amended as follows:

14 (1) In subsection (a)—

15 (A) by striking ‘‘(a) IN GENERAL.—’’ and

16 inserting ‘‘(b) DEPORTATION OF PERMANENT

17 RESIDENT ALIENS.—(1) IN GENERAL.—’’; and

18 (B) by inserting in the first sentence ‘‘per19 manent resident’’ after ‘‘correctional facilities

20 for’’;

21 (2) In subsection (b)—

22 (A) by striking ‘‘(b) IMPLEMENTATION.—’’

23 and inserting ‘‘(2) IMPLEMENTATION.—’’; and

24 (B) by striking ‘‘respect to an’’ and insert25 ing ‘‘respect to a permanent resident’’;
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1 (3) By striking out subsection (c);

2 (4) In subsection (d)—

3 (A) by striking ‘‘(d) EXPEDITED PRO4 CEEDINGS.—(1)’’ and inserting ‘‘(3) EXPE5 DITED PROCEEDINGS.—(A)’’;

6 (B) by inserting ‘‘permanent resident’’

7 after ‘‘in the case of any’’; and

8 (C) by striking ‘‘(2)’’ and inserting ‘‘(B)’’;

9 (5) In subsection (e)—

10 (A) by striking ‘‘(e) REVIEW.—(1)’’ and

11 inserting ‘‘(4) REVIEW.—(A)’’;

12 (B) by striking the second sentence; and

13 (C) by striking ‘‘(2)’’ and inserting ‘‘(B)’’.

14 (6) By inserting after the section heading the

15 following new subsection:

16 ‘‘(a) PRESUMPTION OF DEPORTABILITY.—An alien

17 convicted of an aggravated felony shall be conclusively pre18 sumed to be deportable from the United States.’’.

19 (7) The heading of such section is amended to

20 read as follows:

‘‘EXPEDITED DEPORTATION OF ALIENS CONVICTED OF

COMMITTING AGGRAVATED FELONIES’’.

21 (d) EFFECTIVE DATE.—The amendments made by

22 this section shall apply to all aliens against whom deporta23 tion proceedings are initiated after the date of enactment

24 of this Act.
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1 SEC. 4. JUDICIAL DEPORTATION.

2 (a) JUDICIAL DEPORTATION.—Section 242A of the

3 Immigration and Nationality Act (8 U.S.C. 1252a) is

4 amended by inserting at the end the following new sub5 section:

6 ‘‘(d) JUDICIAL DEPORTATION.—

7 ‘‘(1) AUTHORITY.—Notwithstanding any other

8 provision of this Act, a United States district court

9 shall have jurisdiction to enter a judicial order of de10 portation at the time of sentencing against an alien

11 whose criminal conviction causes such alien to be de12 portable under section 241(a)(2)(A)(iii) (relating to

13 conviction of an aggravated felony), if such an order

14 has been requested prior to sentencing by the United

15 States Attorney with the concurrence of the Com16 missioner.

17 ‘‘(2) PROCEDURE.—

18 ‘‘(A) The United States Attorney shall pro19 vide notice of intent to request judicial deporta20 tion promptly after the entry in the record of

21 an adjudication of guilt or guilty plea. Such no22 tice shall be provided to the court, to the alien,

23 and to the alien’s counsel of record.

24 ‘‘(B) Notwithstanding section 242B, the

25 United States Attorney, with the concurrence of

26 the Commissioner, shall file at least 20 days
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1 prior to the date set for sentencing a charge

2 containing factual allegations regarding the

3 alienage of the defendant and satisfaction by

4 the defendant of the definition of aggravated

5 felony.

6 ‘‘(C) If the court determines that the de7 fendant has presented substantial evidence to

8 establish prima facie eligibility for relief from

9 deportation under section 212(c), the Commis10 sioner shall provide the court with a rec11 ommendation and report regarding the alien’s

12 eligibility for relief under such section. The

13 court shall either grant or deny the relief

14 sought.

15 ‘‘(D)(i) The alien shall have a reasonable

16 opportunity to examine the evidence against

17 him or her, to present evidence on his or her

18 own behalf, and to cross-examine witnesses pre19 sented by the Government.

20 ‘‘(ii) The court, for the purposes of deter21 mining whether to enter an order described in

22 paragraph (1), shall only consider evidence that

23 would be admissible in proceedings conducted

24 pursuant to section 242(b).
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1 ‘‘(iii) Nothing in this subsection shall limit

2 the information a court of the United States

3 may receive or consider for the purposes of im4 posing an appropriate sentence.

5 ‘‘(iv) The court may order the alien de6 ported if the Attorney General demonstrates by

7 clear and convincing evidence that the alien is

8 deportable under this Act.

9 ‘‘(3) NOTICE, APPEAL, AND EXECUTION OF JU10 DICIAL ORDER OF DEPORTATION.—

11 ‘‘(A)(i) A judicial order of deportation or

12 denial of such order may be appealed by either

13 party to the court of appeals for the circuit in

14 which the district court is located.

15 ‘‘(ii) Except as provided in clause (iii),

16 such appeal shall be considered consistent with

17 the requirements described in section 106.

18 ‘‘(iii) Upon execution by the defendant of

19 a valid waiver of the right to appeal the convic20 tion on which the order of deportation is based,

21 the expiration of the period described in section

22 106(a)(1), or the final dismissal of an appeal

23 from such conviction, the order of deportation

24 shall become final and shall be executed at the
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1 end of the prison term in accordance with the

2 terms of the order.

3 ‘‘(B) As soon as is practicable after entry

4 of a judicial order of deportation, the Commis5 sioner shall provide the defendant with written

6 notice of the order or deportation, which shall

7 designate the defendant’s country of choice for

8 deportation and any alternate country pursuant

9 to section 243(a).

10 ‘‘(4) DENIAL OF JUDICIAL ORDER.—Denial of a

11 request for a judicial order of deportation shall not

12 preclude the Attorney General from initiating depor13 tation proceedings pursuant to section 242 upon the

14 same ground of deportability or upon any other

15 ground of deportability provided under section

16 241(a).’’.

17 (b) TECHNICAL AND CONFORMING CHANGES.—The

18 ninth sentence of section 242(b) of the Immigration and

19 Nationality Act (8 U.S.C. 1252(b)) is amended by striking

20 out ‘‘The’’ and inserting in lieu thereof, ‘‘Except as pro21 vided in section 242A(d), the’’.

22 (c) EFFECTIVE DATE.—The amendments made by

23 this section shall apply to all aliens whose adjudication of

24 guilt or guilty plea is entered in the record after the date

25 of enactment of this Act.
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1 SEC. 5. RESTRICTING DEFENSES TO DEPORTATION FOR

2 CERTAIN CRIMINAL ALIENS.

3 (a) DEFENSES BASED ON SEVEN YEARS OF PERMA4 NENT RESIDENCE.—The last sentence of section 212(c)

5 of the Immigration and Nationality Act (8 U.S.C.

6 1182(c)) is amended by striking out ‘‘has served for such

7 felony or felonies’’ and all that follows through the period

8 and inserting in lieu thereof ‘‘has been sentenced for such

9 felony or felonies to a term of imprisonment of at least

10 5 years, provided that the time for appealing such convic11 tion or sentence has expired and the sentence has become

12 final.’’.

13 (b) DEFENSES BASED ON WITHHOLDING OF DEPOR14 TATION.—Section 243(h)(2) of the Immigration and Na15 tionality Act (8 U.S.C. 1253(h)(2)) is amended by—

16 (1) striking out the final sentence and inserting

17 in lieu thereof the following new subparagraph:

18 ‘‘(E) the alien has been convicted of an ag19 gravated felony.’’; and

20 (2) striking out the ‘‘or’’ at the end of subpara21 graph (C) and inserting ‘‘or’’ at the end of subpara22 graph (D).
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1 SEC. 6. ENHANCING PENALTIES FOR FAILING TO DEPART,

2 OR REENTERING, AFTER FINAL ORDER OF

3 DEPORTATION.

4 (a) FAILURE TO DEPART.—Section 242(e) of the Im5 migration and Nationality Act (8 U.S.C. 1252(e)) is

6 amended—

7 (1) by striking out ‘‘paragraph (2), (3), or 4

8 of’’ the first time it appears, and

9 (2) by striking out ‘‘shall be imprisoned not

10 more than ten years’’ and inserting in lieu thereof,

11 ‘‘shall be imprisoned not more than two years, or

12 shall be imprisoned not more than ten years if the

13 alien is a member of any of the classes described in

14 paragraph (2), (3), or (4) of section 241(a).’’.

15 (b) REENTRY.—Section 276(b) of the Immigration

16 and Nationality Act (8 U.S.C. 1326(b)) is amended—

17 (1) in paragraph (1), by (A) inserting after

18 ‘‘commission of’’ the following: ‘‘three or more mis19 demeanors or’’, and (B) striking out ‘‘5’’ and insert20 ing in lieu thereof ‘‘10’’,

21 (2) in paragraph (2), by striking out ‘‘15’’ and

22 inserting in lieu thereof ‘‘20’’, and

23 (3) by adding at the end the following sentence:

24 ‘‘For the purposes of this subsection, the term ‘depor25 tation’ shall include any agreement where an alien stipu-
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1 lates to deportation during a criminal trial under either

2 Federal or State law.’’.

3 (c) COLLATERAL ATTACKS ON UNDERLYING DEPOR4 TATION ORDER.—Section 276 of the Immigration and Na5 tionality Act (8 U.S.C. 1326) is amended by inserting

6 after subsection (b) the following new subsection:

7 ‘‘(c) In any criminal proceeding under this section,

8 no alien may challenge the validity of the deportation

9 order described in subsection (a)(1) or subsection (b) un10 less the alien demonstrates—

11 ‘‘(1) that the alien exhausted the administrative

12 remedies (if any) that may have been available to

13 seek relief against such order,

14 ‘‘(2) that the deportation proceedings at which

15 such order was issued improperly deprived the alien

16 of the opportunity for judicial review, and

17 ‘‘(3) that the entry of such order was fun18 damentally unfair.’’.

19 SEC. 7. EXPANDED FORFEITURE FOR SMUGGLING OR HAR20 BORING ILLEGAL ALIENS.

21 Subsection 274(b) of the Immigration and National22 ity Act (8 U.S.C. 1324(b)) is amended—

23 (1) by amending paragraph (1) to read as fol24 lows:
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1 ‘‘(b) SEIZURE AND FORFEITURE.—(1) Any property,

2 real or personal, which facilitates or is intended to facili3 tate, or which has been used in or is intended to be used

4 in the commission of a violation of subsection (a) or of

5 sections 274A(a)(1) or 274A(a)(2), or which constitutes

6 or is derived from or traceable to the proceeds obtained

7 directly or indirectly from a commission of a violation of

8 subsection (a), shall be subject to seizure and forfeiture,

9 except that—

10 ‘‘(A) no property, used by any person as a com11 mon carrier in the transaction of business as a com12 mon carrier shall be forfeited under the provisions of

13 this section unless it shall appear that the owner or

14 other person in charge of such property was a con15 senting party or privy to the illegal act;

16 ‘‘(B) no property shall be forfeited under the

17 provisions of this section by reason of any act or

18 omission established by the owner thereof to have

19 been committed or omitted by any person other than

20 such owner while such property was unlawfully in

21 the possession of a person other than the owner in

22 violation of the criminal laws of the United States

23 or of any State; and

24 ‘‘(C) no property shall be forfeited under this

25 paragraph to the extent of an interest of any owner,
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1 by reason of any act or omission established by that

2 owner to have been committed or omitted without

3 the knowledge or consent of the owner, unless such

4 action or omission was committed by an employee or

5 agent of the owner, and facilitated or was intended

6 to facilitate, or was used in or intended to be used

7 in, the commission of a violation of subsection (a) or

8 of section 274A(a)(1) or 274A(a)(2) which was com9 mitted by the owner or which intended to further the

10 business interests of the owner, or to confer any

11 other benefit upon the owner.’’.

12 (2) in paragraph (2)—

13 (A) by striking ‘‘conveyance’’ both places it

14 appears and inserting in lieu thereof ‘‘prop15 erty’’; and

16 (B) by striking ‘‘is being used in’’ and in17 serting in lieu thereof ‘‘is being used in, is fa18 cilitating, has facilitated, or was intended to fa19 cilitate’’;

20 (3) in paragraphs (4) and (5) by striking ‘‘a

21 conveyance’’ and ‘‘conveyance’’ each place such

22 phrase or word appears and inserting in lieu thereof

23 ‘‘property’’; and

24 (4) in paragraph (4) by—
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1 (A) striking ‘‘or’’ at the end of subpara2 graph (C),

3 (B) by striking the period at the end of

4 subparagraph (D) and inserting ‘‘; or’’, and

5 (C) by inserting at the end the following

6 new subparagraph:

7 ‘‘(E) transfer custody and ownership of

8 forfeited property to any Federal, State, or

9 local agency pursuant to the Tariff Act of

10 1930, as amended (19 U.S.C. 1616a(c)).’’.

11 SEC. 8. MISCELLANEOUS AND TECHNICAL CHANGES.

12 (a) FORM OF DEPORTATION HEARINGS.—The sec13 ond sentence of section 242(b) of the Immigration and

14 Nationality Act (8 U.S.C. 1252(b)) is amended by insert15 ing before the period the following: ‘‘; except that nothing

16 in this subsection shall preclude the Attorney General

17 from authorizing proceedings by electronic or telephonic

18 media (with or without the consent of the alien) or, where

19 waived or agreed to by the parties, in the absence of the

20 alien.’’.

21 (b) CONSTRUCTION OF EXPEDITED DEPORTATION

22 REQUIREMENTS.— No amendment made by this Act and

23 nothing in section 242(i) of the Immigration and Nation24 ality Act (8 U.S.C. 1252(i)), shall be construed to create

25 any right or benefit, substantive or procedural, which is
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1 legally enforceable by any party against the United States,

2 its agencies, its officers or any other person.

Æ

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