The fact that a bipartisan comprehensive immigration bill has now advanced to the floor of the Senate is cause for some celebration, but the present bill (S. 744) contains many disappointments, including a failure to address the disproportionate immigration consequences imposed on lawful permanent residents with minor convictions. That failure is all the more apparent when contrasted with the White House’s draft immigration proposal, leaked by the Miami Herald back in February. The Obama Administration’s proposed legislation contained important limitations on some of the harshest aspects of contemporary crimmigration enforcement. In my guest posts this week, I will touch on two such limitations that are relevant to the proportionality problem in immigration law. Today I’ll discuss the importance of narrowing the aggravated felony ground of removal; on Thursday I’ll turn to the Obama plan’s proposed clarification of the definition of “conviction” for immigration purposes.
Immigration law has a zero-tolerance policy for aggravated felons. Noncitizens convicted of aggravated felonies are subject to mandatory detention, presumptively mandatory deportation, and a permanent bar on lawful reentry. Immigration judges are not authorized to set aside an aggravated felon’s deportation for discretionary reasons (including eligibility for asylum). That the noncitizen may have been a lawful permanent resident since childhood does not make a difference. Nor do mitigating factors surrounding the circumstances of the crime, positive equities such as the noncitizens’ contributions to society, or the hardship their families would experience if they were deported. Commit an aggravated felony as a noncitizen and you are out of the country, for life.
What are these aggravated felonies? Unsurprisingly, they include serious offenses such as murder, child pornography, racketeering, and firearms trafficking. But the category also sweeps in lesser crimes that are neither aggravated nor felonies under the penal laws where they are prosecuted. For example, misdemeanor convictions for selling ten dollars worth of marijuana, petty theft of items worth less than twenty dollars, and misdemeanor battery resulting in a year’s probation have all been held to constitute aggravated felonies. Even misdemeanor marijuana possession can be classified as an aggravated felony under federal immigration law if charged as a recidivist offense.
That our current immigration laws impose the most severe immigration penalty possible – permanent banishment – on the basis of misdemeanor offenses has troubled far more legal commentators than I could possibly cite here. But I’ll briefly point out the work of Mike Wishnie, Angela Banks, and Juliet Stumpf, who have (separately) written articles that propose legal challenges or legislative reforms to address the proportionality concerns raised by the INA’s inclusion of minor crimes within the aggravated felony ground of removal.
Proportionality is the principle that “the severity of the sanction should not be excessive in relation to the gravity of the offense.” Michael J. Wishnie, Immigration Law and the Proportionality Requirement, 2 U.C. Irvine L. Rev. 101 (2012). Using metrics for proportionality established in both the criminal sentencing and civil punitive damages context, Professor Wishnie argues that immigration courts should set aside removal orders where the penalty is grossly disproportionate to the underlying misconduct. Although it’s still unclear whether any judges will agree that immigration consequences are constrained by the Supreme Court’s constitutional proportionality doctrines, Padilla v. Kentucky, 130 S. Ct. 1473 (2010), certainly bolsters the argument by recognizing deportation as a “penalty” (and one that automatically follows many criminal convictions, including misdemeanors). In The Normative & Historical Cases for Proportional Deportation, which is forthcoming in the Emory Law Journal, Angela Banks makes the historical case that proportionality was a foundational principle in immigration law. Professor Banks argues that the removal of green-card holders on the basis of minor crimes is excessive, and urges legislation returning proportionality norms to immigration law. Juliet Stumpf’s article on the subject sensibly proposes the enactment of a graduated range of immigration penalties according to the seriousness of the underlying immigration offense. Fitting Punishment, 66 Wash. & Lee L. Rev. 1683, 1732-40 (2009).
In The Plea Bargain Crisis for Noncitizens in Misdemeanor Court, which will be published this month in volume 34 of the Cardozo Law Review, I argue that this proportionality critique, while powerful, actually underappreciates the scope of the problem. Imposing permanent banishment, with little or no consideration of a lawful permanent resident’s individual equities, is not just an excessive penalty for having committed relatively minor convictions. Rather, there is often little guarantee that noncitizen misdemeanants are legally or even factually guilty of the offenses later used to justify their removal from the United States. This is because the institutional dynamics of state and local misdemeanor courts significantly hamper the ability of noncitizens to plea bargain effectively or challenge the merits of their arrests or charges.
As documented in a nascent but vibrant body of literature, the actors in the misdemeanor system spend precious little time actually screening, investigating, or negotiating the merits of individual cases, and the system exerts significant pressure on misdemeanor defendants to plead guilty as early as possible to off-the-rack plea offers. Following a recent explosion in arrests for low-level offenses, prosecutors now file approximately ten million misdemeanor prosecutions each year, dwarfing the number of felony cases. Robert C. Boruchowitz et al., Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 11 (2009). The system copes with this enormous volume by processing defendants quickly, categorically, and sometimes en masse. See Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1328-29 (2012). Efficiency is the central systemic norm in misdemeanor courts, outstripping due process, adversarial adjudication, and evidence. See Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1701-02 (2010); John D. King, Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors in the United States, in The Prosecutor in Transnational Perspective 20, 23 (2012).
Despite Padilla v. Kentucky’s holding that the Sixth Amendment requires defense counsel to accurately advise clients about the immigration consequences of a guilty plea, there is very little reason to conclude that noncitizens in misdemeanor court consistently receive such information. Throughout the country, many misdemeanor defendants proceed without any assistance of counsel. Even where attorneys are appointed, crushing caseloads reduce the likelihood of individualized attention, relegating their role to advising clients to accept going-rate plea offers as early in the process as possible. See Jenny Roberts, Why Misdemeanors Matter, 45 UC Davis L. Rev. 277 (2011). Prohibitively high bail, continuances and delays, language and cultural obstacles, and other process costs work to diminish the likelihood that misdemeanor cases will go to trial, or be successful if they do. My article also explains how the current integration of immigration enforcement with criminal justice systems exacerbates some of these problems and creates additional complexities for noncitizens charged with minor crimes. See 34 Cardozo L. Rev. at 1796-1803.
While commentators have proffered various justifications for using criminal convictions as a basis for imposing immigration consequences, the core of each theory is that convictions are a proxy for social desirability. See generally Allegra M. McLeod, The U.S. Criminal-Immigration Convergence and Its Possible Undoing, 49 Am. Crim. L. Rev. 105, 125–30 (2012). But whatever the merits of that proxy in general, the reliability of convictions as indicia of culpability sufficient to warrant banishment begins to crumble when applied to misdemeanants. Today’s misdemeanor convictions largely reflect unchallenged assumptions of criminality rather than actual guilt or the strength of the prosecutor’s evidence. Aggravated felony categories that include minor offenses simply cannot be relied upon to delineate the most undesirable noncitizens, because petty convictions now convey little to nothing about whether the immigrant did something normatively wrong.
The Obama Administration’s proposed legislation would have ameliorated this proportionality problem in two ways. First, the proposal narrowed the definition of several aggravated felony categories – “crimes of violence,” theft, burglary, obstruction of justice, perjury, and others – to exclude misdemeanors. While under current law these crimes qualify as aggravated felonies if punished by one year’s incarceration (even if suspended or served as probation), the proposal would have treated them as such only if they resulted in a term of imprisonment of more than five years. Title I – Enforcement § 122(a). Second, the proposal would have made lawful permanent residents convicted of any aggravated felony eligible for discretionary cancellation of removal except where punished by at least five years imprisonment. Id.
The current draft of S. 744 contains no similar provisions. But my hope, as reforms are debated in the months to come, is that the Senate, and ultimately the entire Congress, will amend the bill in ways that restore proportionality to our immigration laws. Narrowing the definition of at least some aggravated felonies to exclude misdemeanors would be a good place to start.
Jason Cade is a former NYC immigration lawyer and a newly minted Assistant Professor at the University of Georgia Law School.