Fact or Fiction: The Legal Construction of Immigration Removal for Crimes

Thousands of long-term legal permanent residents are deported from the United States each year because they have been convicted of criminal offenses, many quite minor. These deportations occur without any of the constitutional safeguards that generally protect criminal defendants. Immigration authorities rely on cases asserting that such deportations are not punishment for the crime, but merely collateral consequences of the conviction. This article challenges that reasoning. It argues that its factual and doctrinal foundation has completely disintegrated over the last 20 years. Far-reaching changes in immigration law and enforcement have rendered deportation for aggravated felonies a "definite, immediate and largely automatic effect on the range of the defendant's punishment," that is, the direct consequence of a conviction. As such, the state should impose it only subject to the same constitutional protections that apply to criminal prosecutions. One key implication is that non-citizen criminal defendants should be fully and accurately advised of the immigration consequences of any plea agreement. Finally, this article argues that, while deportation has essentially become an additional criminal sanction for non-citizens, it is not a particularly effective or appropriate one. The article thus advocates a deep revision of immigration laws to restore deportation as a sanction imposed in the exercise of discretion on those whose criminal offenses outweigh their ties to the United States community and the hardship they and their community would suffer if they were deported.