Why criminal convictions should NOT have immigration consequences
by José Jorge MendozaApril 25, 2018
In 2009, James Garcia Dimaya was charged with two counts of burglary. Like most people caught up in the U.S. criminal justice system, he did not try to fight these charges in court. Instead, he pleaded no contest in exchange for a lighter sentence. The problem for Dimaya is that he is not a U.S. citizen and under the Immigration and Nationality Act (INA) any immigrant convicted of an “aggravated felony” is subject to deportation. What counts as an “aggravated felony,” however, differs from state to state. To make matters worse, the Obama administration—perhaps in a naïve attempt to provide political cover for their DACA and DAPA programs—made the deportation of immigrants with criminal convictions a top priority. No surprise, the Obama administration tried to deport Dimaya in 2010.
Dimaya fought his deportation, arguing that his non-violent burglary convictions do not meet the standard of “aggravated felony.” His case eventually made it to the Supreme Court, which on April 17, 2018 found in his favor by a narrow 5-4 ruling. Given the country’s current climate, this is nothing short of a major victory for immigrant rights. Trump, more than Obama, has made deporting immigrants (and specifically those with criminal convictions) his top priority. Trump also handpicked Neil Gorsuch for the Supreme Court with the belief that Gorsuch would promote his immigration agenda by overruling lower court decisions that stood in his way, like those that blocked various version of the “Muslim ban” or upheld the constitutionality of “sanctuary cities.” So the fact that Gorsuch cast the deciding vote in this case has made the victory even that much sweeter.
But, before we declare “mission accomplished,” we must take stock of what this decision actually entails. Immediately after the decision, Trump did not react as he typically does when courts disappoint him. Instead of berating Justice Gorsuch, he sent out the following tweet:
Today’s Court decision means that Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons. This is a public safety crisis that can only be fixed by Congress — House and Senate must quickly pass a legislative fix to ensure violent criminal aliens can be removed from our society. Keep America Safe!”
What Trump is pointing out is that the court did not find the deportation of immigrants with criminal records unconstitutional. It only found that the current criteria used for determining which crimes count as deportable offenses is unconstitutionally vague. Congress can easily remedy this problem by amending the language in the INA. Dimaya’s victory therefore does not actually challenge the government’s right to attach immigration consequences to criminal convictions. In the section that follows, I will lay out some reasons for why we should find this problematic.
According to immigration law professor, César Cuauhtémoc García Hernández, there are three aspects that together come to form what legal experts have dubbed crimmigration:
- Criminal convictions carrying immigration consequences.
- Violations of immigration law leading to criminal punishments.
- Allowing criminal law enforcement tactics to be used for immigration enforcement purposes and vice versa.
Here I only have enough space to focus on the first, but I believe that each aspect of crimmigration is morally problematic.
The fact that some criminal convictions carry immigration consequences is not itself new. What is new (and troubling) is the number of crimes that can carry immigration consequences and the rate at which deportation has been used as part of a criminal conviction. To illustrate the point, between 1875-1980, more than one hundred years, only about 70,000 immigrants were removed due to criminal offenses. By contrast, in 2013 alone that number reached more than 200,000. The vagueness of the criteria used to determine a removable offense is no doubt part of the problem, as many crimes can be made to fit under the heading of “moral turpitude” or “aggravated felony,” as defined by the INA, but the real problem goes much deeper.
First, adding deportation to criminal convictions unfairly alters the process by which a person’s guilt or innocence is determined. In the U.S. today, the criminally accused are strongly incentivized to take plea deals, even when they are innocent, because the reward of being found not-guilty is heavily outweighed by the risk of significantly higher sentences. This system is itself deeply flawed, but it’s the one we have and justice demands that everyone get equal access to it, with all of its kinks, flaws, and nuances. The current system therefore puts immigrants in a double bind. They cannot accept most plea deals, as such deals count as convictions and would thereby make them deportable, but going to trial puts them at a much higher risk of longer sentences and a conviction there would still lead to their deportation.
Putting the flawed legal process aside, we should also find it inherently troubling that people are being punished twice for essentially the same offense. Some might counter that deportation is not technically part of the criminal punishment, but this notion is quickly betrayed by the justice department itself. For example, their spokesperson, Devin O’Malley, said the following immediately after the the Sessions v. Dimaya decision came down:
We call on Congress to close criminal alien loopholes to ensure that criminal aliens who commit those crimes…are not able to avoid the consequences that should come with breaking our nation’s laws.
In other words, the justice department does not understand deportation to be merely an incidental administrative consequence, but sees it as an inherent part of criminal justice.
Whether deportation is technically considered an added punishment or not, it is for long-term resident immigrants nothing short of exile or banishment and we should find that morally abhorrent. For example, Dimaya came to the U.S. from the Philippines in 1992 at the age of thirteen. And while he might not have gone on to become a model citizen, sending him back to the Philippines today—more than twenty-five years later and after he has already served his time—would be doing justice to no one. So for these reasons, the issue at stake here is not one about obtaining clearer criteria, but about ending the practice of deporting immigrants with criminal convictions altogether.