In a thorough and easy-to-read article published in the latest issue of the Yale Journal on Regulation, Maureen A. Sweeney, a visiting assistant professor at the University of Maryland School of Law, argues that the decades-old characterization of deportation as a “collateral” consequence of criminal proceedings should be discarded.
Sweeney’s article, Fact or Fiction: The Legal Construction of Immigration Removal for Crimes, makes the straightforward argument that “courts have consistently held that removal is not punishment for crime but is instead a remedial civil sanction and a collateral, rather than direct, consequence of a conviction.” 27 Yale J. on Reg. 47, 49 (2010). This starting point is well known to attorneys who attempted to challenge a criminal conviction based on a court or defense attorney’s failure to discuss potential immigration consequences with criminal defendants prior to the Supreme Court’s decision in Padilla v. Kentucky earlier this month. In Padilla, Justice Stevens, writing for five members of the Court, described deportation as “integral” to the criminal plea process. Stevens added that the collateral versus direct distinction is “ill-suited” in determining whether a non-USC criminal defendant’s Sixth Amendment right to effective assistance of counsel was violated.
The benefit of Sweeney’s article is that she starts with this well-known theoretical position and explains that, if this distinction was ever accurate, it can no longer be said to reflect the reality faced by non-citizens with criminal convictions. “This theoretical characterization,” she writes, “no longer corresponds in any meaningful way to the realities of immigration law and enforcement, which have changed radically in the last two decades. It has become a fiction that obscures rather than reflects any level of reality.” Sweeney, Fact or Fiction, 27 Yale J. on Reg. at 49.
To support her argument that this distinction is not accurate given today’s convergence of criminal law and immigration law she charts the evolution of immigration law—more precisely, crImmigration law, though she does not use this term—from an area of law that afforded Immigration Judges a good amount of discretion to one where numerous crimes now require removal. In 1973, she explains, the Fourth Circuit issued the decision that has come to define the direct versus collateral distinction, Cuthrell v. Director, 475 F.2d 1364 (4th Cir. 1973). “The court in Cuthrell stated that the directness of a consequence turned on whether it ‘represent[ed] a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’” Sweeney, Fact or Fiction, 27 Yale J. on Reg. at 53.
To put it mildly, a lot has changed in immigration law since 1973. What then might have led to deportation today will lead to deportation almost as surely as the fact that income tax forms are due every April 15. Sweeney does a great job recounting the demise of former INA § 212(c), which, as the Supreme Court recognized in INS v. St. Cyr, 533 U.S. 289, 296 (2001), meant that deportation was often not an automatic consequence of a criminal conviction. Sweeney, Fact or Fiction, 27 Yale J. on Reg. at 61.
The twin legislative catastrophes of 1996—the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)—struck another powerful blow to the discretionary aspect of immigration law. “These two laws together revolutionized the way that convictions were addressed by the immigration system,” Sweeney writes. “They redefined and substantially broadened (again) the universe of crimes for which one could be removed from the United States by expanding the definition of what constitutes both a conviction and a term of imprisonment for immigration purposes…[and] also broadened the definition of aggravated felonies….” Sweeney, Fact or Fiction, 27 Yale J. on Reg. at 65.
As such, Sweeney suggests, today removal frequently results directly from conviction for a criminal offense. “An analysis of the current landscape of immigration law and enforcement relating to convictions reveals that removal does, in fact, function as punishment, and, at least in the case of those convicted of aggravated felonies, has come to a point where it can very fairly be characterized as the definite, immediate, and automatic consequence of the criminal court’s action.” Sweeney, Fact or Fiction, 27 Yale J. on Reg. at 67.
Sweeney recognizes that many non-USCs do in fact challenge their removal in Immigration Courts. These challenges, she notes, target the characterization of a particular offense as one that requires removal—i.e., a claim that a particular crime is not an aggravated felony. Once a criminal conviction is categorized as an aggravated felony, though, “[t]here is no room for a finding that the individual is not removable and simply no legal option for the court to exercise its discretion and find her eligible for some form of relief from removal.” Sweeney, Fact or Fiction, 27 Yale J. on Reg. at 81-82.
This article, to say the least, is an interesting read—great content and clear explanation. I look forward to more of Sweeney’s work.