The Absurdity of Crime-Based Deportation

Abstract

The belief that immigrants are crossing the border, in the stealth of night, with nefarious desires to bring violence, crime, and drugs to the United States has long been part of the public imagination. Studies and statistics overwhelmingly establish the falsehood of this rhetoric. The facts are that non-citizens commit fewer crimes and reoffend less often than citizens. But facts do not stop the myth. Even supporters of immigration reform often will point out that they will help deserving immigrants but will deport the undeserving ones, particularly those with criminal convictions, and especially those who committed violent crimes.

Despite the new administration’s call to deport up to three million criminals, my Article counters that there will be — and should be — an end to crime-based deportation. It is already happening quickly and quietly in federal courts. Beginning in 2013, the Supreme Court decided United States v. Descamps, and in 2016, Mathis v. United States. These cases are highly technical decisions relating to the federal Armed Career Criminal Act (“ACCA”) and immigration law’s Illegal Immigration and Immigrant Responsibility Act (“IIRIRA”).

This Article draws upon empirical data to show that, as predicted by the Justices, a faithful adherence to Descamps and Mathis will eliminate numerous offenses from having ACCA and IIRIRA consequences on a case-by-case, statute-by-statute basis.

As a normative matter, I contend that this result is the proper one. Prosecutors, judges, and policy makers are embracing this reality in the ACCA context. The same result should be embraced in the immigration context. IIRIRA’s reliance on convictions to serve as immigration violations is too arbitrary, too expensive, and simply out of proportion to how the criminal courts considered the seriousness (or lack thereof) of the crime. Instead, Congress must repeal IIRIRA and return to a system whereby criminal offenders were subjected to individualized assessments. Those who made more contributions to the country stayed, and those who did not, left. The experiment of presuming that a conviction is a marker of character has failed. Immigration law must return to grading crimes by their actual seriousness instead of assuming that categories of crimes adequately sort out who should or should not remain.