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Deportation and Judicial Discretion

Values: Everyone deserves a fair day in court

Every person who goes before a judge is entitled to due process of law, including a full and individualized hearing that takes account of all relevant circumstances, and a sanction, if any, that is proportionate to the person’s offense.

Problem: One-size-fits-all justice ties judges hands and denies immigrants a fair day in court

In many cases involving immigrants, judges are stripped of their power to consider individual circumstances and are effectively forced to order the drastic punishment of deportation, often against their legal training and professional judgment.

  • Immigrants have virtually no opportunity to defend themselves.

Deportation is mandatory for any immigrant convicted of a so-called “aggravated felony.” This over-broad category exists only in immigration law and includes offenses that are neither aggravated nor felonies under criminal law, even decades-old misdemeanors and certain marijuana offenses.

  • Judges are barred from judging.

Immigration judges used to be able to recommend against deportation if they considered it too severe a punishment, given the totality of circumstances. But under harsh laws passed in the 1990s, judges often no longer have discretion to weigh individual factors, such as the nature of the offense or how long ago it happened, or the fact that deportation would mean permanently separating a person from his or her family.

  • Deportation is a punishment that doesn’t fit the crime.

Immigrants with convictions have already been punished in the criminal justice system, in some cases with jail time; they have paid their debt to society. Deportation amounts to a harsh extra punishment, one that means permanent exile from home, family, work, and community.

The immigration system compounds the injustices of the criminal justice system.
It is widely recognized that the US criminal justice system disproportionately and unduly targets people of color, including immigrants. Yet the US government relies on this same flawed system to funnel immigrants into its deportation machine, where judges in many cases are reduced to mere bystanders.

The Solution: Let judges be judges and restore the promise of a fair day in court

The US Congress should:

    • change harsh laws that tie judges’ hands and force them to deport immigrants. Judges should have discretion to consider all the facts and circumstances of the cases and waive deportation where appropriate
    • reduce the number of offenses classified as “aggravated felonies”
    • apply a statute of limitations to offenses that can lead to deportation
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