Re-Examining the Zero-Tolerance Approach to Deporting Aggravated Felons: Restoring Discretionary Waivers and Developing New Tools
Harvard Law & Policy Review, Vol. 8, 2014, Forthcoming
33 Pages Posted: 3 Jan 2014 Last revised: 30 Jan 2014
Date Written: January 2, 2014
In this essay, I argue that immigration judges should regain discretion over deportation cases involving lawful permanent resident immigrants who have committed aggravated felonies — discretion that was eliminated in 1996. Congress’s failure to address the issue of reinstating immigration court discretion is a missed opportunity to act consistently with changing political attitudes toward law enforcement and notions of proportionality. Addressing these issues would invite a conversation about the effect of criminal deportations on the prospective deportee, who may in fact be well on the road to rehabilitation. The effect on the community also would become relevant, as we focus on the role that the person has played in the family, in the neighborhood, and at work. By reinstating discretion to give such individuals a second chance, the positive benefits that such individuals bring to the community would be as salient to the conversation as would whatever perceived gain there might be from their removal. Providing discretionary relief to a long-term, lawful permanent resident who has committed an aggravated felony may actually make sense for the individual as well as for the community.
In making this argument, I urge several considerations. I compare the current approach to what existed in the past as well as what other countries do in similar situations. I consider recent philosophical trends in the criminal justice arena that are relevant, as well as the views of prosecutors and immigration judges. What becomes evident is that deporting long-time, lawful permanent residents raises serious issues of whether the punishment fits the crime. I argue that without providing these lawful residents with an opportunity to plead for a second chance, this approach punishes them in a manner that is disproportional to their wrongdoing. In fact, triple punishment is imposed: criminal punishment (often in the form of incarceration), removal (sometimes to a country where the deportee has few ties), and banishment from return because the person is barred from readmission permanently.
Keywords: immigration, criminal deportation, permanent resident immigrants, judicial discretion, aggravated felonies
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