Notes on 8 U.S.C. § 1228 : US Code - Notes

Search Notes on 8 U.S.C. § 1228 : US Code - Notes

(June 27, 1952, ch. 477, title II, ch. 4, Sec. 238, formerly ch. 5,
Sec. 242A, as added Pub. L. 100-690, title VII, Sec. 7347(a), Nov.
18, 1988, 102 Stat. 4471; amended Pub. L. 101-649, title V, Sec.
506(a), Nov. 29, 1990, 104 Stat. 5050; Pub. L. 102-232, title III,
Sec. 309(b)(10), Dec. 12, 1991, 105 Stat. 1759; Pub. L. 103-322,
title XIII, Sec. 130004(a), (c), Sept. 13, 1994, 108 Stat. 2026,
2027; Pub. L. 103-416, title II, Secs. 223(a), 224(a), Oct. 25,
1994, 108 Stat. 4322; Pub. L. 104-132, title IV, Secs. 440(g),
442(a), (c), Apr. 24, 1996, 110 Stat. 1278-1280; renumbered ch. 4,
Sec. 238, and amended Pub. L. 104-208, div. C, title III, Secs.
304(c)(1), 306(d), 308(b)(5), (c)(1), (4)(A), (e)(1)(F), (2)(D),
(10), (g)(1), (2)(A), (C), (5)(A)(ii), (C), (D), (10)(H), 374(a),
title VI, Sec. 671(b)(13), (c)(5), (6), Sept. 30, 1996, 110 Stat.
3009-597, 3009-612, 3009-615, 3009-616, 3009-619, 3009-620, 3009-
622, 3009-623, 3009-625, 3009-647, 3009-722, 3009-723.)
REFERENCES IN TEXT                        
For effective date of this section, referred to in subsec.
(a)(4)(B), see Effective Date note below.
Section 1252b of this title, referred to in subsec. (c)(2)(B),
was repealed by Pub. L. 104-208, div. C, title III, Sec. 308(b)(6),
Sept. 30, 1996, 110 Stat. 3009-615.
Section 1253 of this title, referred to in subsec. (c)(3)(B), was
amended generally by Pub. L. 104-208, div. C, title III, Sec.
307(a), Sept. 30, 1996, 110 Stat. 3009-612, and, as so amended,
subsec. (a) no longer contains provisions relating to alternate
countries. Provisions similar to those contained in former subsec.
(a) of section 1253 are now contained in section 1231(b) of this
title.
Federal Rule of Criminal Procedure 11, referred to in subsec.
(c)(5), is set out in the Appendix to Title 18, Crimes and Criminal
Procedure.
CODIFICATION                           
Section was formerly classified to section 1252a of this title
prior to renumbering by Pub. L. 104-208.
PRIOR PROVISIONS                         
A prior section 1228, act June 27, 1952, ch. 477, title II, ch.
4, Sec. 238, 66 Stat. 202, as amended, which related to entry
through or from foreign contiguous territory and adjacent islands,
was renumbered section 233 of act June 27, 1952, by Pub. L. 104-
208, div. C, title III, Sec. 308(b)(4), Sept. 30, 1996, 110 Stat.
3009-615, and was transferred to section 1223 of this title.
AMENDMENTS                            
1996 - Pub. L. 104-208, Sec. 308(b)(5), substituted "removal" for
"deportation" in section catchline.
Subsec. (a). Pub. L. 104-208, Sec. 308(e)(10), substituted
"Removal" for "Deportation" in heading.
Subsec. (a)(1). Pub. L. 104-208, Sec. 308(g)(1), substituted
"1227(a)(2)(A)(iii)" for "1251(a)(2)(A)(iii)".
Pub. L. 104-208, Sec. 308(e)(1)(F), substituted "removal" for
"deportation" in two places.
Pub. L. 104-208, Sec. 308(c)(4)(A), inserted at end "Nothing in
this section shall be construed to create any substantive or
procedural right or benefit that is legally enforceable by any
party against the United States or its agencies or officers or any
other person."
Pub. L. 104-208, Sec. 308(c)(1)(A), substituted "section 1229a"
for "section 1252".
Pub. L. 104-132, Sec. 440(g)(1)(B), struck out ", where
warranted," after "assures expeditious deportation".
Pub. L. 104-132, Sec. 440(g)(1)(A), as amended by Pub. L. 104-
208, Secs. 306(d), 308(g)(10)(H), 671(c)(5), substituted "any
criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C),
or (D) of this title, or any offense covered by section
1227(a)(2)(A)(ii) of this title for which both predicate offenses
are, without regard to the date of their commission, otherwise
covered by section 1227(a)(2)(A)(i) of this title" for "aggravated
felonies (as defined in section 1101(a)(43) of this title)".
Subsec. (a)(2). Pub. L. 104-208, Sec. 308(c)(1)(B), substituted
"section 1226(c)" for "section 1252(a)(2)".
Pub. L. 104-132, Sec. 440(g)(2), which directed substitution of
"any criminal offense covered in section 1251(a)(2)(A)(iii), (B),
(C), or (D) of this title, or any offense covered by section
1251(a)(2)(A)(ii) of this title for which both predicate offenses
are covered by section 1251(a)(2)(A)(i) of this title." for
"aggravated felony" and all that follows through "before any
scheduled hearings.", was repealed by Pub. L. 104-208, Sec.
671(c)(6).
Subsec. (a)(3), (4). Pub. L. 104-208, Sec. 308(e)(1)(F),
substituted "removal" for "deportation" wherever appearing.
Subsec. (b). Pub. L. 104-208, Sec. 308(e)(10), substituted
"Removal" for "Deportation" in heading.
Subsec. (b)(1). Pub. L. 104-208, Sec. 308(g)(5)(C), substituted
"section 1229a" for "section 1252(b)".
Pub. L. 104-208, Sec. 308(e)(1)(F), substituted "removal" for
"deportation".
Pub. L. 104-208, Sec. 308(c)(1)(C), substituted "section
1227(a)(2)(A)(iii)" for "section 1251(a)(2)(A)(iii)".
Subsec. (b)(2)(A). Pub. L. 104-132, Sec. 442(a)(1)(A),
substituted "or" for "and" at end.
Subsec. (b)(2)(B). Pub. L. 104-132, Sec. 442(a)(1)(B), amended
subpar. (B) generally. Prior to amendment, subpar. (B) read as
follows: "is not eligible for any relief from deportation under
this chapter."
Subsec. (b)(3). Pub. L. 104-208, Sec. 308(g)(2)(A), substituted
"section 1252" for "section 1105a".
Pub. L. 104-132, Sec. 442(a)(2), substituted "14 calendar days"
for "30 calendar days".
Subsec. (b)(4)(B). Pub. L. 104-132, Sec. 442(a)(3), substituted
"proceedings" for "proccedings".
Subsec. (b)(4)(D). Pub. L. 104-208, Sec. 304(c)(1)(A), (B),
redesignated subpar. (E) as (D) and amended it generally, and
struck out former subpar. (D). Prior to amendments, subpars. (D)
and (E) read as follows:
"(D) such proceedings are conducted in, or translated for the
alien into, a language the alien understands;
"(E) a determination is made for the record at such proceedings
that the individual who appears to respond in such a proceeding is
an alien subject to such an expedited proceeding under this section
and is, in fact, the alien named in the notice for such
proceeding;".
Pub. L. 104-132, Sec. 442(a)(4)(B), added subpar. (D). Former
subpar. (D) redesignated (F).
Subsec. (b)(4)(E). Pub. L. 104-208, Sec. 304(c)(1)(C),
redesignated subpar. (F) as (E). Former subpar. (E) amended
generally and redesignated (D).
Pub. L. 104-132, Sec. 442(a)(4)(B), added subpar. (E). Former
subpar. (E) redesignated (G).
Subsec. (b)(4)(F). Pub. L. 104-208, Sec. 308(e)(1)(F),
substituted "removal" for "deportation".
Pub. L. 104-208, Sec. 304(c)(1)(C), redesignated subpar. (G) as
(F). Former subpar. (F) redesignated (E).
Pub. L. 104-132, Sec. 442(a)(4)(A), redesignated subpar. (D) as
(F).
Subsec. (b)(4)(G). Pub. L. 104-208, Sec. 304(c)(1)(C),
redesignated subpar. (G) as (F).
Pub. L. 104-132, Sec. 442(a)(4)(A), redesignated subpar. (E) as
(G).
Subsec. (b)(5). Pub. L. 104-208, Sec. 308(e)(1)(F), substituted
"removal" for "deportation".
Pub. L. 104-132, Sec. 442(a)(5), added par. (5).
Subsec. (c). Pub. L. 104-208, Sec. 671(b)(13), redesignated
subsec. (d) relating to judicial removal as (c).
Pub. L. 104-208, Sec. 308(e)(10), substituted "removal" for
"deportation" in heading.
Pub. L. 104-132, Sec. 442(c), added subsec. (c), relating to
presumption of deportability.
Subsec. (c)(1). Pub. L. 104-208, Sec. 308(e)(1)(F), substituted
"removal" for "deportation".
Subsec. (c)(2)(A). Pub. L. 104-208, Sec. 308(e)(1)(F),
substituted "removal" for "deportation".
Subsec. (c)(2)(B). Pub. L. 104-208, Sec. 308(g)(1), substituted
"section 1227(a)(2)(A)" for "section 1251(a)(2)(A)".
Subsec. (c)(2)(C). Pub. L. 104-208, Sec. 308(e)(1)(F),
substituted "removal" for "deportation".
Subsec. (c)(2)(D)(ii). Pub. L. 104-208, Sec. 308(g)(5)(D),
substituted "section 1229a" for "section 1252(b)".
Subsec. (c)(2)(D)(iv). Pub. L. 104-208, Sec. 308(e)(2)(D),
substituted "removed" for "deported".
Subsec. (c)(3). Pub. L. 104-208, Sec. 308(e)(10), substituted
"removal" for "deportation" in heading.
Subsec. (c)(3)(A)(i). Pub. L. 104-208, Sec. 308(e)(1)(F),
substituted "removal" for "deportation".
Subsec. (c)(3)(A)(ii). Pub. L. 104-208, Sec. 308(g)(2)(A),
substituted "section 1252" for "section 1105a".
Subsec. (c)(3)(A)(iii). Pub. L. 104-208, Sec. 308(g)(2)(C),
substituted "section 1252(b)(1)" for "section 1105a(a)(1)".
Pub. L. 104-208, Sec. 308(e)(1)(F), substituted "removal" for
"deportation" in two places.
Subsec. (c)(3)(B). Pub. L. 104-208, Sec. 308(e)(1)(F),
substituted "removal" for "deportation" wherever appearing.
Subsec. (c)(4). Pub. L. 104-208, Sec. 308(g)(5)(A)(ii),
substituted "section 1229a" for "section 1252".
Pub. L. 104-208, Sec. 308(g)(1), substituted "section 1227(a)"
for "section 1251(a)".
Pub. L. 104-208, Sec. 308(e)(1)(F), substituted "removal" for
"deportation" in two places.
Subsec. (c)(5). Pub. L. 104-208, Sec. 308(e)(10), substituted
"removal" for "deportation" in heading.
Pub. L. 104-208, Sec. 308(e)(1)(F), substituted "removal" for
"deportation" in two places.
Subsec. (d). Pub. L. 104-208, Sec. 671(b)(13), redesignated
subsec. (d) relating to judicial removal as (c).
Subsec. (d)(1). Pub. L. 104-208, Sec. 374(a)(1), substituted "who
is deportable" for "whose criminal conviction causes such alien to
be deportable under section 1251(a)(2)(A) of this title".
Subsec. (d)(4). Pub. L. 104-208, Sec. 374(a)(2), struck out
"without a decision on the merits" after "Denial".
Subsec. (d)(5). Pub. L. 104-208, Sec. 374(a)(3), added par. (5).
1994 - Pub. L. 103-322, Sec. 130004(c)(1), struck out "procedures
for" after "Expedited" in section catchline.
Subsec. (a)(1). Pub. L. 103-322, Sec. 130004(c)(2), substituted
subsec. heading for one which read "In general", redesignated
existing subsec. (a) as par. (1) of subsec. (a), and inserted
heading.
Subsec. (a)(2). Pub. L. 103-322, Sec. 130004(c)(3), redesignated
subsec. (b) as par. (2) of subsec. (a).
Subsec. (a)(3). Pub. L. 103-322, Sec. 130004(c)(5), redesignated
subsec. (d) as par. (3) of subsec. (a), and redesignated pars. (1)
and (2) of former subsec. (d) as subpars. (A) and (B),
respectively, of subsec. (a)(3).
Subsec. (a)(4). Pub. L. 103-322, Sec. 130004(c)(6), redesignated
subsec. (e) as par. (4) of subsec. (a), redesignated par. (1) of
former subsec. (e) as subpar. (A) of subsec. (a)(4) and struck out
at end "Within 12 months after the effective date of this section,
the Attorney General shall submit a report to the Committees on the
Judiciary of the House of Representatives and of the Senate
concerning the effectiveness of such deportation proceedings in
facilitating the deportation of aliens convicted of aggravated
felonies.", and redesignated par. (2) of former subsec. (e) as
subpar. (B) of subsec. (a)(4).
Subsec. (b). Pub. L. 103-322, Sec. 130004(a), added subsec. (b).
Former subsec. (b) redesignated par. (2) of subsec. (a).
Subsec. (b)(4)(D), (E). Pub. L. 103-416, Sec. 223(a), struck out
"the determination of deportability is supported by clear,
convincing, and unequivocal evidence and" before "a record is" in
subpar. (D) and substituted "adjudicated" for "entered" in subpar.
(E).
Subsec. (c). Pub. L. 103-322, Sec. 130004(c)(4), struck out
heading and text of subsec. (c). Prior to amendment, text read as
follows: "An alien convicted of an aggravated felony shall be
conclusively presumed to be deportable from the United States."
Subsec. (d). Pub. L. 103-416, Sec. 224(a), added subsec. (d).
Pub. L. 103-322, Sec. 130004(c)(5), redesignated subsec. (d) as
par. (3) of subsec. (a).
Subsec. (e). Pub. L. 103-322, Sec. 130004(c)(6), redesignated
subsec. (e) as par. (4) of subsec. (a).
1991 - Subsec. (a). Pub. L. 102-232 inserted closing parenthesis
before period at end of first sentence.
1990 - Subsec. (d)(2). Pub. L. 101-649 struck out before period
at end ", unless the chief prosecutor or the judge in whose
jurisdiction conviction occurred submits a written request to the
Attorney General that such alien be so deported".
EFFECTIVE DATE OF 1996 AMENDMENTS                 
Section 304(c)(2) of div. C of Pub. L. 104-208 provided that:
"The amendments made by paragraph (1) [amending this section] shall
be effective as if included in the enactment of section 442(a) of
Public Law 104-132."
Amendment by section 308(b)(5), (c)(1), (4)(A), (e)(1)(F),
(2)(D), (10), (g)(1), (2)(A), (C), (5)(A)(ii), (C), (D), (10)(H) of
Pub. L. 104-208 effective, with certain transitional provisions, on
the first day of the first month beginning more than 180 days after
Sept. 30, 1996, see section 309 of Pub. L. 104-208, set out as a
note under section 1101 of this title.
Section 306(d) of div. C of Pub. L. 104-208 provided that the
amendment made by that section is effective as if included in the
enactment of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132.
Section 374(c) of div. C of Pub. L. 104-208 provided that: "The
amendment made by subsection (a)(2) [amending this section] shall
be effective as if included in the enactment of section 224(a) of
the Immigration and Nationality Technical Corrections Act of 1994
[Pub. L. 103-416]."
Amendment by section 671(b)(13) of Pub. L. 104-208 effective as
if included in the enactment of the Immigration and Nationality
Technical Corrections Act of 1994, Pub. L. 103-416, see section
671(b)(14) of Pub. L. 104-208, set out as a note under section 1101
of this title.
Amendment by section 671(c)(5), (6) of Pub. L. 104-208 effective
as if included in the enactment of subtitle A of title IV of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-
132, see section 671(c)(7) of Pub. L. 104-208, set out as a note
under section 1189 of this title.
Section 442(d) of Pub. L. 104-132 provided that: "The amendments
made by this section [amending this section and section 1105a of
this title] shall become effective no later than 60 days after the
publication by the Attorney General of implementing regulations
that shall be published on or before January 1, 1997."
EFFECTIVE DATE OF 1994 AMENDMENTS                 
Amendment by section 224(a) of Pub. L. 103-416 applicable to all
aliens whose adjudication of guilt or guilty plea is entered in the
record after Oct. 25, 1994, see section 224(c) of Pub. L. 103-416,
set out as a note under section 1252 of this title.
Section 130004(d) of Pub. L. 103-322 provided that: "The
amendments made by this section [amending this section and section
1105a of this title] shall apply to all aliens against whom
deportation proceedings are initiated after the date of enactment
of this Act [Sept. 13, 1994]."
EFFECTIVE DATE OF 1990 AMENDMENT                 
Section 506(b) of Pub. L. 101-649 provided that: "The amendment
made by subsection (a) [amending this section] shall take effect on
the date of the enactment of this Act [Nov. 29, 1990]."
EFFECTIVE DATE                          
Section 7347(c) of Pub. L. 100-690 provided that: "The amendments
made by subsections (a) and (b) [enacting this section and amending
section 1105a of this title] shall apply in the case of any alien
convicted of an aggravated felony on or after the date of the
enactment of this Act [Nov. 18, 1988]."
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF
FUNCTIONS
For abolition of Immigration and Naturalization Service, transfer
of functions, and treatment of related references, see note set out
under section 1551 of this title.
REFERENCES TO ORDER OF REMOVAL DEEMED TO INCLUDE ORDER OF EXCLUSION
AND DEPORTATION
For purposes of carrying out this chapter, any reference in law
to an order of removal is deemed to include a reference to an order
of exclusion and deportation or an order of deportation, see
section 309(d)(2) of Pub. L. 104-208, set out in an Effective Date
of 1996 Amendments note under section 1101 of this title.
EXPANDED SPECIAL REMOVAL PROCEEDINGS               
Section 130007 of Pub. L. 103-322, as amended by Pub. L. 104-208,
div. C, title III, Sec. 308(g)(5)(F), (10)(F), title VI, Sec.
671(a)(6), Sept. 30, 1996, 110 Stat. 3009-623, 3009-625, 3009-721,
provided that:
"(a) In General. - Subject to the availability of appropriations,
the Attorney General may expand the program authorized by
section[s] 238(a)(3) and 239(d) of the Immigration and Nationality
Act [8 U.S.C. 1228(a)(3), 1229(d)] to ensure that such aliens are
immediately deportable upon their release from incarceration.
"(b) Detention and Removal of Criminal Aliens. - Subject to the
availability of appropriations, the Attorney General may - 
"(1) construct or contract for the construction of 2
Immigration and Naturalization Service Processing Centers to
detain criminal aliens; and
"(2) provide for the detention and removal of such aliens.
"(c) Report. - By September 30, 1996, and September 30, 1998 the
Attorney General shall report to the Congress on the programs
referred to in subsections (a) and (b). The report shall include an
evaluation of the programs, an outcome-based measurement of
performance, and an analysis of the cost effectiveness of the
additional resources provided under this Act [see Tables for
classification].
"(d) Authorization of Appropriations. - There are authorized to
be appropriated to carry out this section - 
"(1) $55,000,000 for fiscal year 1995;
"(2) $54,000,000 for fiscal year 1996;
"(3) $49,000,000 for fiscal year 1997; and
"(4) $2,000,000 for fiscal year 1998."
(!1) So in original. Two subsecs. (c) have been enacted.
(!2) See References in Text note below.