Back to the Future? Returning Discretion to Crime-Based Removal Decisions

Abstract

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest article, Return of the JRAD, 90 NYU L. REV. ONLINE 36 (2015), calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a “Judicial Recommendation Against Deportation” (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States.

Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by respected federal district court judge Jack Weinstein. In United States v. Aguilar, the judge issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children.

One might dismiss Judge Weinstein’s recommendation as mere dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the immigration laws. He seeks to return discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Part I expresses full agreement with Jason Cade’s conclusion in Return of the JRAD that the modern criminal removal system fails to protect against unfair removals of immigrants.

Part II adds a powerful justification to the call for the reform of the modern criminal removal system – namely, the serious concerns with the overwhelming modern racial disparities in removals, which directly flow directly from racial disparities in the operation of the modern criminal justice system in the United States. The contemporary criminal removal regime has disparate impacts on Latina/o immigrants, who today comprise the overwhelming majority of the persons deported from the United States. In fact, the modern removal system might accurately be characterized as a Latina/o removal system. The racial impacts of contemporary criminal removals alone warrant a wholesale reconsideration of criminal removals under current American immigration law.

Part III considers separation of powers concerns in the administration of the immigration laws. Jason Cade indirectly raises a critically important question concerning the branch of the federal government that is best equipped — constitutionally and politically — to curb the excesses of the modern criminal removal system. Fundamental separation of powers principles suggest that Congress should be the focus of reforms.

The challenging political question posed to reformers is how to convince Congress to dismantle the mandatory criminal removal regime that it built. As politicians frequently employ anti-immigrant themes for political gain, noncitizens with criminal convictions continue to be among the most reviled of all immigrants in American politics. Only through a political change of heart can Congress begin to restore discretion to removal decisions and better ensure that respect is afforded to the weighty human interests of immigrants, their families, and communities.