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UNITED STATES v. LOPEZ

June 27, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR LOPEZ, Defendant.



The opinion of the court was delivered by: PLUNKETT

 The defendant, Omar Lopez, was convicted on May 6, 1993, upon a plea of guilty, of conspiracy to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846. He was sentenced to 135 months imprisonment to be followed by five years of supervised release. He is currently confined at the Federal Correctional Institution at Pekin, Illinois. Mr. Lopez is, according to the evidence before this Court at the time we entered the detention order and later denied his motion for pretrial release, an illegal alien who had been in this country for about two months at the time of his arrest. *fn1"

 At the time of sentencing, the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1524, prohibited the deportation of any alien sentenced to imprisonment until the alien is released from confinement. 8 U.S.C. § 1252(h). Section 1252(h) was amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 438(a), 110 Stat. 1214, 1275-76 (Apr. 24, 1996) (to be codified at 8 U.S.C. § 1252(h)) and now reads:

 
(1) Except as provided in paragraph (2), an alien sentenced to imprisonment may not be deported until such imprisonment has been terminated by the release of the alien from confinement. Parole, supervised release, probation, or possibility of rearrest or further confinement in respect of the same offense shall not be a ground for deferral of deportation.
 
(2) The Attorney General is authorized to deport an alien in accordance with applicable procedures under this Act prior to the completion of a sentence of imprisonment--
 
(A) in the case of an alien in the custody of the Attorney General, if the Attorney General determines that (i) the alien is confined pursuant to a final conviction for a nonviolent offense (other than alien smuggling), and (ii) such deportation of the alien is appropriate and in the best interest of the United States; or
 
(B) in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that (i) the alien is confined pursuant to a final conviction for a nonviolent offense (other than alien smuggling), (ii) such deportation is appropriate and in the best interest of the State, and (iii) submits a written request to the Attorney General that such alien be so deported.
 
(3) Any alien deported pursuant to this subsection shall be notified of the penalties under the laws of the United States relating to the reentry of deported aliens, particularly the expanded penalties for aliens deported under paragraph (2). *fn2"

 In light of this amendment, the defendant now moves for an immediate order of deportation pursuant to section 1252(h)(2)(A). He states that he is ready and willing to waive his right to deportation hearings before the completion of his sentence and that he is aware of the amendment to 8 U.S.C. § 1326, which provides that any alien deported pursuant to section 1252(h)(2) who

 
enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation
 
. . . .

 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 438(b), 110 Stat. 1214, 1276 (Apr. 24, 1996) (to be codified at 8 U.S.C. § 1326(c)).

 The principal problem with Mr. Lopez's motion is that we have no jurisdiction to enter the order he desires. We note first that the amended section 1252(h) expressly conditions any deportation of an alien sentenced to imprisonment on the determination by the Attorney General that (1) the alien has been convicted of a non-violent offense; and (2) such deportation is appropriate and in the best interest of the United States. Mr. Lopez has not indicated in his motion that the Attorney General has made either determination in his case -- and if the Attorney General had, it is unlikely that Mr. Lopez would be before us now.

 More importantly, nothing in the language of section 1252(h), as amended, confers on an alien a private right of action to seek deportation. In reaching this conclusion, we look to the companion provision of the Immigration and Nationality Act that directs the Attorney General to begin deportation ...


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