Infusing the Deportation System With Restorative Justice

Immigration judges need an alternative to deportation of long-time lawful residents who have usually made a single mistake -- a system that adopts a rehabilitative approach to justice might be most appropriate.
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First of two parts on the lack of options available to federal immigration judges.

Last week marked the one-year anniversary of the Supreme Court's decision in Padilla v. Kentucky -- a deportation case involving a 40-year lawful permanent resident of the United States who was a Vietnam War veteran. About 10 years ago, José Padilla, a commercial truck driver, based on advice from his defense attorney, pleaded guilty to transporting marijuana. His attorney had told him, incorrectly, that the conviction would not affect his immigration status. In fact, the conviction led to an automatic deportation order. Because of the incompetence of his attorney, the Supreme Court set aside Padilla's conviction, and imposed a duty on criminal defense attorneys to provide competent advice to noncitizens about potential immigration consequences in all future cases.

The Padilla case is important, of course, but an underlying problem persists: after competent defense advice is given to long-time lawful permanent residents, a conviction for certain crimes -- including a couple of petty thefts -- can still lead to deportation. And if the conviction is classified as an "aggravated felony," deportation is virtually automatic. In the latter situation, federal immigration judges lack any discretion or options to ordering the person removed from the country. That means that the following facts are irrelevant: that the person has resided lawfully in the United States for decades, the effect of deportation on a citizen spouse and children, a record of long and stable employment, contributions to the community or neighborhood, or that the person is fully rehabilitated and remorseful. Furthermore, while "aggravated felony" includes some very serious crimes, it doesn't take much for a conviction to fall into the classification. Many minor drug offense and offenses that can lead to a one-year sentence is all that's necessary. I'm aware of cases that were classified as aggravated felonies that included driving without a license when the person was on parole, medical benefits fraud, and multiple counts of joy-riding. And deportation comes after the person's incarceration for the underlying conviction. In other words, deportation is not used by "aggravated felons" to escape their jail time; deportation comes after they get out of jail.

Prior to immigration legislation in 1996, a long-time lawful resident of the United States facing deportation for an aggravated felony could ask for discretionary relief from an immigration judge in a deportation hearing. The judge could hear testimony about rehabilitation, family, employment, and the person's community. If the judge was convinced that the individual deserved a second chance, the person would get to remain in the United States lawfully. If not, the person would be ordered deported, but at least the person had a chance to introduce evidence of rehabilitation. That all changed in 1996, when Congress was swept up in a pre-9/11 fervor over anti-terrorism and getting tough on crime. The pre-1996 relief was repealed.

Those who supported eliminating discretionary relief for aggravated felons in 1996 were frustrated with the way immigration judges exercised discretion; some legislators thought judges were too lenient. However, that concern was overblown; granting such relief was never automatic. Furthermore, immigration judges who granted relief routinely warned respondents that if they recidivated, they wouldn't get a third chance and deportation would be ordered. This scared most immigrants straight.

Yet the concern that opponents of discretionary relief had -- that immigration judges were too generous -- should make us wonder if some other options ought to be available to immigration judges. Under the pre-1996 framework, the judge handling the case of a long-term resident who was convicted of an aggravated felony had two choices: to deport or let the person stay here lawfully. In either scenario, the immigrant had no further contact with government officials after the order was made. One wonders whether something short of deportation could be created that would address concerns raised by both proponents and opponents of deportation -- something like placing the person on probation.

Given the special challenges faced by many refugees and other low-income immigrants, a system that adopts a rehabilitative approach to justice might be most appropriate. A relationship-building theme ought to be central to that approach, because young adults (who make up many deportees) need assistance with relationship-building in the family and with community. The goal of this relational or restorative justice notion is to avoid injustice and promote legitimacy and good relationships. This can make good sense in the deportation or removal process.

The relational or restorative approach is premised on the goal of rehabilitating the individual, sometimes using group therapy, counseling, and even job training. The framework recognizes that conventional criminal justice institutions (courts, police, probation department) are not solely responsible. Social networks including family, friends, neighbors, church, and employers must step up to make the process work.

The current removal process for aggravated felons who have grown up in the United States and lived here lawfully for most of their lives contains none of these components or values. Relief is altogether foreclosed from them. Information on their lives, their families, their community, and their rehabilitation is deemed irrelevant. The immigration laws have made deportation an extension of the criminal justice process.

Immigration judges need an alternative to deportation of long-time lawful residents who have usually made a single mistake. If Congress is afraid of outright reinstating discretionary power to judges to halt these deportations, at the very least, Congress should grant judges the power to order a probationary period for these individuals. During the probation, they can be monitored and allowed to go through restorative justice and relational-building processes with their families and neighborhoods. We can all benefit from that.

Next up: The deportation of individuals with mental disabilities.

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