crimmigration.com

The intersection of criminal law and immigration law

  • Home
  • About César
  • Articles
  • Books
  • Book Tour
  • Talks & Media

Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

Jason Cade

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.

  • Share via Facebook
  • Share via LinkedIn
  • Share via Twitter
  • Share via Email

Share this:

  • Twitter
  • Facebook

Posted by César on May 30, 2013 on 9:00 am 36 Comments
Filed Under: commentaries, Congress, conviction, guest blogger, post-conviction relief, proportionality, proposed legislation

Comments

  1. jdsTPpun says

    May 31, 2013 at 11:21 am

    jdsTPpun

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  2. vWKkCznA says

    May 31, 2013 at 11:22 am

    vWKkCznA

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  3. hTIrleUg says

    May 31, 2013 at 11:22 am

    hTIrleUg

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  4. qdebHOPg says

    May 31, 2013 at 11:22 am

    qdebHOPg

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  5. ujUAhJlC says

    May 31, 2013 at 11:22 am

    ujUAhJlC

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  6. IoFVfEBI says

    May 31, 2013 at 11:22 am

    IoFVfEBI

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  7. lmmMrHsb says

    May 31, 2013 at 11:22 am

    lmmMrHsb

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  8. LqwGixoO says

    May 31, 2013 at 11:22 am

    LqwGixoO

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  9. qjlgVTJZ says

    May 31, 2013 at 11:22 am

    qjlgVTJZ

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  10. FBwSgrAy says

    May 31, 2013 at 11:22 am

    FBwSgrAy

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  11. jTrBXrQq says

    May 31, 2013 at 11:22 am

    jTrBXrQq

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  12. QfTEcvOy says

    May 31, 2013 at 11:22 am

    QfTEcvOy

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  13. ncdHEnZA says

    May 31, 2013 at 11:22 am

    ncdHEnZA

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  14. oFluSFsC says

    May 31, 2013 at 11:22 am

    oFluSFsC

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  15. NXlODeoP says

    May 31, 2013 at 11:22 am

    NXlODeoP

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  16. XjZUZSPg says

    May 31, 2013 at 11:23 am

    XjZUZSPg

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  17. WCZTOKkU says

    May 31, 2013 at 11:24 am

    WCZTOKkU

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  18. OOrCwFhz says

    May 31, 2013 at 11:27 am

    OOrCwFhz

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  19. jobEgKZC says

    May 31, 2013 at 11:28 am

    jobEgKZC

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  20. cEPkuQdE says

    May 31, 2013 at 11:28 am

    cEPkuQdE

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  21. nbmnnvsE says

    May 31, 2013 at 11:29 am

    nbmnnvsE

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  22. IPSBNAPQ says

    May 31, 2013 at 11:31 am

    IPSBNAPQ

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  23. wQNEnHjN says

    June 2, 2013 at 3:35 am

    wQNEnHjN

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  24. EBeEPmjw says

    June 2, 2013 at 3:36 am

    EBeEPmjw

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  25. SzdDhAUa says

    June 2, 2013 at 3:36 am

    SzdDhAUa

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  26. skmlSgPB says

    June 2, 2013 at 3:36 am

    skmlSgPB

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  27. gNXYLkSo says

    June 2, 2013 at 3:36 am

    gNXYLkSo

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  28. sFdJcizq says

    June 2, 2013 at 3:37 am

    sFdJcizq

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  29. wvrKkWoD says

    June 2, 2013 at 3:39 am

    wvrKkWoD

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  30. lunette de soleil ray ban says

    June 6, 2013 at 10:40 am

    lunette de soleil ray ban

    Nice…thanks for this.

    Reply
  31. maillot de foot pas cher says

    June 9, 2013 at 5:55 pm

    maillot de foot pas cher

    You know I love your blog!!!

    Reply
  32. iklan tanpa daftar says

    July 2, 2013 at 9:18 pm

    iklan tanpa daftar

    soon after all this time I was trying to find a good document, it seems I’ve got it, appreciate it for posting the write-up.

    Reply
  33. Louis Vuitton Bags says

    July 10, 2013 at 1:01 am

    Louis Vuitton Bags

    The weekend classes have been packed with brides, fashion models and a new breed of Indian fashionistas who have enjoyed the fruits of India’s economic growth.

    Reply
  34. モンクレール ダウン says

    December 13, 2013 at 1:23 pm

    モンクレール ダウン

    crImmigration.com: Proportionality in Immigration Reform Part II: Pardons, Expungements, & Deferred Adjudications

    Reply
  35. Hermes Birkin Outlet says

    February 16, 2014 at 8:40 pm

    Hermes Birkin Outlet

    I think this is one of the most significant info for me. And i am glad reading your article.\nWith the built-in Google Maps navigation equipment, you can go anywhere you want. In 1992 Rolex made Birkin Bag Hermes Price luxury watch history by releasing the Yacht Master. Everyone knows that replica is a copy that is relatively the same as Hermes Birkin Black the original. The Rolex is known all over the world due to the high standards and excellent quality control. These top quality watches provide excellent performance, perfect innovation and reliable stability and that is the reason why Rolex replica watches are world widely respected by Hermes Birkin Orange their customers. You truly will know you’ve bought the right gift when you see it. These three places are Delhi, Agra and Jaipur. In the city of Jaipur tourists can visit Hawa Mahal, City Palace, Govind Templen Jal Mahaln Hermes Birkin Replica Price List Mubarak Palace Nahargarh fort, Jaigarh fort Amber Fort, Kanak Valley etc. Rajasthan Tour Package. This tour package offers the tourists a great opportunity to experience the land of the Kings which is Royal in it.

    Reply
  36. iwigodbdia says

    April 6, 2014 at 9:28 pm

    iwigodbdia

    Agree with your mind. Do you can keep update your post. I wanna back. thx!

    Reply

Leave a Reply to ujUAhJlC Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Subscribe


Recent Posts

  • Supreme Court says gap in conviction records hurts migrant
  • Abolish ICE
  • Federal court enjoins 100-day deportation pause
  • ICE issues enforcement priorities
  • Immigration possibilities & challenges
  • Criminal bars, policing changes, & meaningful reforms in proposed legislation

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.