On Tuesday I posted about the need to narrow the aggravated felony grounds of removal to exclude misdemeanors, which are increasingly unreliable evidence of wrongdoing. Today I’ll be writing about another piece of the proportionality problem in immigration law: deportation on the basis of “convictions” that have been pardoned, expunged, deferred, or that are still pending on direct appeal.
Before the Gang of Eight came up with a comprehensive immigration bill in the Senate (S. 744), the Obama Administration prepared its own draft legislation, leaked by the Miami Herald back in February. Although some provisions from that earlier proposal have analogues in S. 744, one reform that has not shown up yet in the current draft being debated in the Senate would be to clarify the definition of “conviction” for immigration purposes. First, as previously noted by César, President Obama’s draft proposal would have prohibited DHS from using criminal judgments that have been “dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated” as the basis for removal. See Title I—Enforcement § 123. The bill also would have established that a conviction becomes final – thus triggering immigration consequences – only once all direct appeals end. Id. Finally, the proposal would not count any portion of a sentence that has been suspended as part of the term of imprisonment or sentence used for triggering immigration consequences. See Title I – Enforcement § 122(a)(2)(B).
Those who do not study immigration law are often surprised to learn that lawfully present noncitizens are sometimes deported on the basis of state convictions that are still pending on direct appeal, judicially expunged, or treated as a deferred adjudication or suspended sentence under state law. See Matter of Pickering, 23 I. & N. Dec. 621, 624 (B.I.A. 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). Similarly, the Board of Immigration Appeals and some federal courts have held that even full gubernatorial pardons do not remove the immigration consequences of many deportation categories. See, e.g., Matter of Suh, 23 I&N Dec. 626 (BIA 2003).
Deportations that ignore these kinds of criminal justice processes impinge interests at the heart of state autonomy. See Jason A. Cade, Deporting the Pardoned, 46 U.C. Davis L. Rev. 355 (2012). Pardons, appeals, deferred adjudications, and expungements comprise integral components of the states’ administration of their general criminal laws. Individually and collectively, these processes work to ensure systemic integrity, correct errors, calibrate punishment, encourage rehabilitation, and conserve judicial and penal resources. Such tools are of increasing importance, especially in minor, mostly public-order cases, where, as recent studies and scholars have shown, convictions often are produced en masse in a system driven more by efficiency than evidence.
Steven Jansen, who is vice president of the Association of Prosecuting Attorneys, recently published an Op-Ed echoing some of these concerns. Jansen urged Congress to provide clearer guidelines for state prosecutors and judges, for instance by bringing the definitions of “conviction” and “sentence” in line with what those terms mean in state criminal court. As Jansen explains, an increasing number of localities are recognizing the benefits of alternatives to criminal sentences like drug and mental health courts and other community diversionary alternatives. He doesn’t cite it, but a study by the Vera Institute of sentencing policies from 2001 to 2010 supports Jansen’s claim by showing that states find it “increasingly difficult to justify using the most expensive intervention – prison – for people convicted of low-level property and drug offenses.” But by treating many of these incarceration alternatives as convictions for immigration purposes, current law takes them off the table for noncitizen defendants, undermining effective prosecution, conservation of vital state resources, and in many cases, a just outcome.
Our current immigration scheme relies heavily on state and local law enforcement and criminal justice systems to identify, prosecute, and sentence noncitizens. (In part this is because the volume of state prosecutions far eclipses the number brought by federal prosecutors.) Through this choice, which represents huge resource-saving benefits to the federal government, Congress has incorporated generally applicable state laws into the federal regulatory scheme. It’s troubling, then, that immigration enforcement often fails to respect the few error-correcting and justice-calibrating tools available in the states’ criminal systems.
Removing noncitizens on the basis of criminal history that isn’t considered a conviction under the law of the jurisdiction that brought the prosecution contributes to the current proportionality problem in immigration law. Congress should enact immigration legislation that gives clear preclusive effect to state criminal justice mechanisms that remove (or defer) the continuing validity of convictions under state law.
Jason Cade is a former NYC immigration lawyer and a newly minted Assistant Professor at the University of Georgia Law School.