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(3) To allow an alien an opportunity to apply for judicial review under
section 6536 of this title, the Attorney General may not execute an order
of deportation issued under this subsection until 30 days have passed from
the date the order was issued, unless waived by the alien.
(d) REVIEW AND EVALUATION.—The Attorney General and the Comp-
troller General shall review and evaluate deportation proceedings conducted
under this section.
§ 6534. Judicial deportation of convicted aliens
(a) JURISDICTION.—A district court of the United States has jurisdiction
to enter a judicial order of deportation at the time of sentencing against
an alien whose criminal conviction makes the alien deportable under section
6506(a) of this title, if—
(1) the United States Attorney, with the concurrence of the Commis-
sioner of Immigration and Naturalization, requests the order; and
(2) the court chooses to exercise that jurisdiction.
(b) PROCEDURE.—(1) Before the beginning of trial or entry of a guilty
plea, the United States Attorney shall file with the court, and serve on the
defendant and the Commissioner, a notice of intent to request judicial de-
portation.
(2) At least 30 days before the date set for sentencing, the United States
Attorney, with the concurrence of the Commissioner, shall file a charge con-
taining factual allegations related to the defendant’s alienage and identify-
ing each offense that makes the defendant deportable under section 6506(a)
of this title.
(3) If the court finds that the defendant has presented substantial evi-
dence to establish prima facie eligibility for relief from deportation under
this title, the Commissioner shall provide the court with a recommendation
and report on the alien’s eligibility for relief. The court shall grant or deny
the relief sought.
(4) The alien shall have a reasonable opportunity to examine the evidence
against the alien, present evidence, and cross-examine witnesses presented
by the United States Government.
(5) In deciding whether to enter an order described in subsection (a) of
this section, the court may consider only evidence that would be admissible
in a proceeding under section 6532 of this title. This subsection does not
limit the information the court may receive or consider for purposes of im-
posing an appropriate sentence.
(6) The court may order the alien deported if the Attorney General dem-
onstrates that the alien is deportable on a ground referred to in subsection
(a) of this section.
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(c) NOTICE OF ORDER.—As soon as practicable after entry of a judicial
order of deportation, the Commissioner shall provide the defendant with
written notice of the order. The notice shall designate the defendant’s coun-
try of choice for deportation and any alternate country as provided in sec-
tion 6538 of this title.
(d) APPEAL.—The granting or denial on the merits of a judicial order
of deportation may be appealed to the court of appeals for the circuit in
which the district court is located. Except as provided in subsection (e) of
this section, consideration of the appeal shall be consistent with section
6536 of this title.
(e) EXECUTION OF ORDER.—(1) A judicial order of deportation becomes
final when—
(A) the defendant executes a waiver of the right to appeal the convic-
tion on which the order of deportation is based;
(B) the period provided in section 6536(b)(1) of this title expires;
or
(C) there is a final dismissal of an appeal from the conviction.
(2) The final order of deportation shall be executed, as provided in the
order, at the end of the term of imprisonment.
(3) An order entered under this section is void if the conviction on which
the order is based is reversed on direct appeal.
(f) FAILURE TO EXERCISE JURISDICTION.—Denial without a decision on
the merits of a request for a judicial order of deportation does not preclude
the Attorney General from initiating deportation proceedings under section
6532 of this title on the same or any other ground of deportability.
§ 6535. Right to counsel
In a deportation proceeding before an immigration judge and in an appeal
before the Attorney General from a deportation proceeding, an alien is enti-
tled to be represented, at no cost to the United States Government, by the
alien’s choice of counsel authorized to practice in the proceeding or appeal.
§ 6536. Judicial review
(a) APPLICABLE PROVISIONS.—Judicial review of a final order of depor-
tation is governed only by chapter 158 of title 28, except as provided in this
section.
(b) REQUIREMENTS.—(1) A petition for review must be filed—
(A) if the alien has been convicted after November 17, 1988, of an
aggravated felony, not later than 30 days after the date of the final
order of deportation; and
(B) for any other alien, not later than 90 days after the date of the
final order of deportation.
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(2) A petition for review shall be filed with the court of appeals of the
United States for the circuit in which the petitioner resides or for the circuit
in which any part of the proceeding before an immigration judge was held,
but not more than one circuit.
(3) The respondent is the Attorney General. The petition shall be served
on the Attorney General and on the officer or employee of the Immigration
and Naturalization Service in charge of the Service district in which the of-
fice of the clerk of the court is located. Service of the petition on the officer
or employee stays the deportation of the alien pending the court’s decision
on the petition, unless the court orders otherwise. However, if the alien has
been convicted of an aggravated felony, service of the petition does not stay
the deportation unless the court orders otherwise.
(4) Except as provided in paragraph (5)(B) of this subsection—
(A) the court of appeals shall decide the petition only on the admin-
istrative record on which the deportation order is based; and
(B) the administrative findings of fact are conclusive if supported by
reasonable, substantial, and probative evidence on the record considered
as a whole.
(5)(A) If the petitioner claims to be a national of the United States and
the court of appeals finds from the pleadings and affidavits that no genuine
issue of material fact about the petitioner’s nationality is presented, the
court shall decide the nationality claim.
(B) If the petitioner claims to be a national of the United States and the
court of appeals finds that a genuine issue of material fact about the peti-
tioner’s nationality is presented, the court shall transfer the proceeding to
the district court of the United States for the judicial district in which the
petitioner resides for a new hearing on the nationality claim and a decision
on that claim as if an action had been brought in the district court under
section 2201 of title 28.
(C) The petitioner may have the nationality claim decided only as pro-
vided in this section.
(6) When a petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order shall be consoli-
dated with the review of the order.
(7)(A) If the validity of a deportation order has not been judicially de-
cided, a defendant in a criminal proceeding charged with a violation under
section 6537(d), 10152, or 10153 of this title may challenge the validity of
the order in the criminal proceeding only by filing a separate motion before
trial. The district court, without a jury, shall decide the motion before trial.
(B) If the defendant claims in the motion to be a national of the United
States and the district court finds that no genuine issue of material fact