The Erosion of Judicial Discretion in Crime-Based Removal Proceedings

14-02 Immigr. Briefings 1

Immigration Briefings February 2014 Immigration Briefings

THE EROSION OF JUDICIAL DISCRETION IN CRIME-BASED REMOVAL PROCEEDINGS

* by Philip L. Torrey

Sylvain, a longtime lawful permanent resident (LPR) of the United States born in Haiti, was terrified when the Department of Homeland Security (DHS) initiated removal proceedings against him. 1 He recently told The Atlantic, “I could lose everything, my wife, my family. I know no one in Haiti, only what I've seen in pictures. I know only America.” 2 Sylvain is married to a U.S. citizen who, in November 2013, was seven months pregnant. 3 Despite his strong ties to the United States, Sylvain faced almost certain deportation and permanent banishment because of a conviction for a minor criminal offense.

DHS charged Sylvain as deportable based on a single 10-year-old conviction that the agency considered an “aggravated felony.” 4 The conviction arose from a traffic stop during which Sylvain gave the police officer a false name. 5 Immediately recognizing his lapse in judgment, Sylvain corrected himself and told the officer his real name, 6 but his mistake was irreversible. Sylvain was ultimately convicted of forging public records. 7 The criminal sentencing judge ordered a suspended three-year term of imprisonment. 8 A decade later, DHS filed charges based on the conviction to begin Sylvain's deportation. 9 Now in removal proceedings, Sylvain is prohibited from presenting evidence that heavily weighs in favor of allowing him to remain in the United States (e.g., his length of time in the country, his marriage to a U.S. citizen, his responsibilities to his soon-to- be-born child, evidence of rehabilitation, etc.). Without an opportunity to present that evidence, Sylvain's family will be torn apart, and he will be removed from the only country he has ever considered home.

Unfortunately, Sylvain's story is not an anomaly. In a single year, tens of thousands of noncitizens are deported from the United States for nonviolent criminal offenses without an opportunity to present evidence demonstrating equitable factors in favor of allowing the noncitizen to remain in the country. 10 Today's crime-based removal laws require immigration judges to simply determine (1) whether the criminal conviction fits into a category of crimes deemed deportable offenses and (2) if so, whether there is a defense to deportation available to the noncitizen. 11 When determining whether to deport a noncitizen because of a criminal conviction, immigration judges have little—if any—discretion to consider equitable factors, such as the noncitizen's length of residence in the United States or hardship to the noncitizen's family members upon his or her deportation. 12 Despite the harsh consequences of many deportable criminal offenses, the United States is unique among many countries because it 13 largely prohibits immigration judges from considering positive discretionary factors.

In Padilla v. Kentucky, the landmark 2010 Supreme Court case, Justice John Paul Stevens observed that, “as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” 14 If criminal punishment and deportation are so intertwined, why are criminal sentencing judges allowed to consider equitable factors when determining a proper term of imprisonment yet immigration judges are prohibited from considering similar factors when determining whether deportation is proper? 15 The answer, in short, is because Congress says so. Our nation's immigration laws, and the procedures used to enforce them, are determined almost exclusively by Congress, which has plenary power to pass laws concerning immigration. 16 Congress has

responded to political whims and public opinion that conjure the misconception that “criminal aliens” are largely to blame for 17 violent crime and terrorism in the United States despite statistics that clearly state the contrary.

Over the last century, Congress has been increasingly driven by the goal of expeditiously removing noncitizens with criminal convictions. It has expanded the categories of crimes that qualify as deportable offenses while simultaneously restricting defenses to deportation by heightening their eligibility requirements or eliminating defenses altogether. Unfortunately, many of the defenses that Congress eliminated were based on the weighing of discretionary factors. They allowed adjudicators to consider all aspects of a noncitizen's life before determining whether he or she should be deported. However, as political tides shifted toward increasing deportations, Congress restricted and ultimately repealed many of those discretionary forms of relief because it erroneously believed that they were granted too frequently or allowed too many noncitizens with criminal convictions to avoid deportation. The resulting erosion of adjudicatory discretion has resulted in cases like Sylvain's where crime-based removal laws are applied in a draconian, mechanical, and often inhumane manner.

This Briefing discusses how and why Congress has eliminated, or at least severely curtailed, discretion in the context of crime- based removal proceedings. First, this Briefing discusses why the ability of adjudicators to exercise discretion is critically important. Second, this Briefing examines how Congress has slowly eroded judicial discretion, particularly over the last few decades. To illustrate that point, this Briefing focuses on the legislative and judicial histories of two discretionary forms of relief: (1) the judicial recommendation against deportation (JRAD) and (2) the waiver of deportation pursuant to § 212(c) of the INA [8 U.S.C.A. § 1182(c)]. Third, this Briefing examines why Congress has sought to eliminate or limit judicial discretion. Finally, this Briefing concludes with a short discussion of the limited forms of discretionary relief still available to noncitizens with criminal convictions and what Congress should do to restore discretion in the immigration system.

THE VALUE OF DISCRETION IN REMOVAL PROCEEDINGS Discretion does not necessarily prevent deportation; it simply allows an adjudicator the opportunity to consider all aspects of a noncitizen's life before deciding whether fairness and justice warrant deportation. Discretion has been described as a “flexible shock absorber.” 18 It gives judges authority to administer justice that reflects the specific circumstances of an individual case. When exercised properly, discretion produces a fair result in accordance with the intent of lawmakers.

In the context of crime-based removal proceedings, the exercise of discretion is needed to prevent the perfunctory application of deportation laws without regard to the specific circumstances of a noncitizen's life. As mentioned, the immigration consequences of a criminal conviction are often severe: mandatory detention, permanent exile, separation from family, and deportation to potentially life-threatening conditions. 19 Discretion allows an adjudicator the opportunity to ensure that such consequences are appropriate considering the severity of the criminal offense.

The facts in the Padilla v. Kentucky case are illustrative. In that case, Mr. Padilla was ordered deported because of a conviction for transporting marijuana. 20 At the time, Mr. Padilla had been an LPR for more than 40 years during which he honorably served as a member of the U.S. Armed Forces in Vietnam. 21 Relying on nothing more than common sense, Mr. Padilla's 22 criminal defense counsel advised him not “to worry about immigration status because he had been in the country so long.” Based on that poor advice, Mr. Padilla waived his right to a jury trial and pleaded guilty without knowing that the conviction 23 would result in his deportation.

Mr. Padilla's counsel did not know that an immigration judge could not consider the positive discretionary factors in Mr. Padilla's case—such as his 40 years in the United States and military service—because his deportable offense was considered an aggravated felony. Unfortunately, Congress has made explicit that many crime-based removal provisions are to be strictly

applied without regard to the existence of equitable factors weighing in the noncitizen's favor. Discussing the restrictive language of current immigration laws, Justice Stevens noted in his opinion for the Padilla majority that: The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation 24 or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.

Unlike most Western nations, the rigidity of our country's crime-based removal statutes leaves adjudicators little choice but to deport individuals despite an abundance of positive discretionary factors. 25 A former immigration judge expressed his frustration with today's mechanical application of crime-based removal laws: My 30-year career with the Department of Justice has been exciting and stimulating. Each case I hear is a life story. I have been able to grant refuge to persons who have a genuine fear of persecution. I have been able to unite or re-unite families. On the other hand, in many cases I have had to deal with the frustration of not being able to grant relief to someone because of the precise requirements of the statute, even though 26 on a personal level he appears to be worthy of some immigration benefit.

ERODING JUDICIAL DISCRETION: THE HISTORY OF JUDICIAL RECOMMENDATIONS AGAINST DEPORTATION AND THE § 212(c) WAIVER OF DEPORTATION Over the past few decades, Congress has reduced judges' ability to grant discretionary relief in order to increase the number of “criminal alien” deportations. 27 Legislation has expanded the grounds for removal, expedited the removal process, and eliminated defenses to deportation. Today, few defenses exist for individuals with criminal convictions regardless of the offense's severity. Based on figures from the Syracuse Transactional Records Access Clearinghouse, between Fiscal Years (FYs) 2009 and 2013, approximately 73.41% of noncitizens charged as removable due to a criminal conviction were found ineligible for relief and subsequently deported. 28 Congress' elimination of discretion resulted in the deportation of hundreds of thousands of noncitizens with convictions for minor, nonviolent offenses. 29 According to calculations by Human Rights 30 Watch, between 1997 and 2007, 77% of crime-based deportations were the result of nonviolent offenses.

An examination of federal legislative history—particularly of the JRAD and the § 212(c) waiver of deportation—illuminates why policymakers have created a crime-based removal process almost completely devoid of judicial discretion.

Judicial Recommendations Against Deportation Nearly 100 years ago, Congress determined that criminal sentencing judges—not immigration authorities—were in the best position to determine the appropriate immigration consequences of certain criminal convictions. 31 The Immigration Act of February 5, 1917 (1917 Act) gave criminal sentencing judges the ability to weigh discretionary factors in determining whether a criminal conviction warranted punishment beyond criminal punishment by way of deportation. 32 If not, then the judge had 33 the ability to prevent deportation by issuing a JRAD.

JRADs were binding orders on immigration officials prohibiting them from commencing removal proceedings against a 34 noncitizen based solely on his or her conviction for a deportable crime known as a “crime involving moral turpitude” (CIMT).

CIMTs were never statutorily defined, but courts have generally considered them to include crimes involving theft, fraud, or violence. 35 Congress passed the 1917 Act to allow criminal sentencing judges to weigh both positive and negative discretionary factors, such as a defendant's criminal history, evidence of rehabilitation, and community ties before determining whether to issue a JRAD. 36 If a judge believed that the positive factors outweighed the negative factors, then he or she could grant a JRAD.

Congress placed only two statutory limitations on a judge's ability to issue a JRAD. First, the JRAD had to be issued within 30 days of criminal sentencing, and, second, “due notice” and an opportunity to contest the JRAD had to be given to immigration authorities before it was issued. 37 The 30-day requirement was particularly important to Congress. In fact, the House of Representatives rejected an amendment that would have allowed a judge to issue a JRAD “at any time before deportation” because members of Congress believed that such a decision should be made “promptly and when the entire matter is fresh” and 38 before the defendant's specific circumstances faded from the judge's memory.

Congress created JRADs to prevent the harsh dual punishment of deportation following a criminal sentence. 39 The deportation of noncitizens with established family ties in the United States was particularly troubling to Congress. 40 By creating JRADs, Congress acknowledged not only the severity of immigration consequences following a conviction but also the importance of considering equitable factors prior to issuing a deportation order. 41 One federal court noted that “Congress recognized that not every conviction of a [CIMT] … required deportation but that there might well be mitigating circumstances under which the harsh penalty of deportation should not be imposed.” 42 The court further emphasized that “Congress did not believe that 43 public policy required a rigid and inflexible application of technical definitions.”

Statutory language concerning JRADs remained relatively unchanged for decades. But post-World War II hysteria concerning the rise of drug addiction and the spread of Communism prompted passage of the Narcotic Control Act of 1956 (1956 Act), which barred the use of JRADs in cases involving drug-related offenses. 44 The 1956 Act was the result of a nationwide survey and subsequent nine-page Senate report that claimed that the United States had more drug addicts “than all of the other western nations combined.” 45 The report also opined that Communist China was conspiring “to demoralize susceptible individuals in [U.S.] military services and in the general population” by encouraging drug addiction. 46 It recommended the swift removal of 47 drug addicts through incarceration and, in the case of a noncitizen, through deportation.

Noncitizens with drug-related convictions were no longer eligible for a JRAD regardless of how heavily equitable factors weighed in their favor. 48 Congress believed that drug offenses were so egregious that even the most favorable factors could not save a noncitizen with such an offense from deportation: “There are few criminal acts that are more reprehensible than the act of abetting drug addiction by engaging in the illicit narcotic and marihuana traffic.” 49 Drug trafficking was further described 50 as “murder on the installment plan.”

Interestingly, Congress intended to exclude drug-related offenses from the purview of JRADs four years earlier when it passed the INA in 1952. The INA consolidated deportable offenses, including some drug-related offenses, previously scattered throughout the U.S. Code into Title 8 of the U.S. Code. 51 Drug-related offenses now appeared in their own removable grounds sections of the statute rather than being grouped into the CIMT ground of removal. 52 However neither the INA nor its legislative history included explicit mention of removing drug offenses from the ambit of JRADs. 53 Absent explicit congressional guidance, some judges continued to issue JRADs in cases concerning drug offenses. 54 A pair of judicial decisions in 1954 particularly bothered Congress such that it made clear when passing the 1956 Act that it intended to prevent noncitizens with a drug-related conviction from receiving a JRAD:

[T]his provision does not permit judicial recommendation against deportation of an alien convicted of a narcotic offense. Clarification of this provision has been made desirable by reason of the decisions in United States ex rel. De Luca v. O'Rourke ((8 Cir.) 213 F.2d 759) and Ex Parte Robles-Rubio (D.C. 119 F.Supp. 55 610).

According to the Ninth Circuit, “suffice it to say that Congress was not happy with the interpretation given [JRADs after the 56 1952 Act] by the courts.”

Following passage of the INA and the 1956 Act, the scope of the JRAD provision was briefly expanded pursuant to the Anti- Drug Abuse Act of 1988 (ADAA). 57 The ADAA created the infamous “aggravated felony” category of deportable criminal 58 59 offenses. JRADs, however, were briefly available to noncitizens convicted of crimes that qualified as aggravated felonies. Despite the new crime-based ground of deportation, Congress intended some judicial discretion to remain so as not to produce 60 an unfair application of the new provision.

That expansion was short-lived. Two years later, the Immigration Act of 1990 (IMMACT 1990) repealed the JRAD altogether. 61 New INS Commissioner Gene McNary was a proponent of eliminating JRADs, as well as other defenses to removal, because he was frustrated by what he considered to be the slow pace of the removal process. 62 He claimed at the time that “the way the INS handles cases is absurd. A lawyer can keep a case in the system for years.” 63 The INS, therefore, pushed for legislation that expedited removal of noncitizens by limiting procedural protections afforded to them and 64 65 eliminating defenses to removal, like the JRAD. Even lobbying efforts by state court judges could not save the JRAD. There is little in the legislative record on the repeal of the JRAD, but experts claim that Congress was also under the mistaken impression that noncitizens had too many procedural rights, which made the deportation of “criminal aliens” too difficult and 66 time-consuming.

In practice, JRADs were rarely requested by practitioners, and, of those requested, few were granted. 67 In fact, JRADs were “virtually unheard of” in many jurisdictions. 68 There are three principle explanations for the infrequent use of JRADs. First, the number of crime-based deportations was generally very low prior to 1990. 69 Therefore, many criminal defense attorneys were unfamiliar with JRADs or the procedure for requesting one. 70 Second, the comprehensive systems that DHS currently has for identifying noncitizens with criminal convictions did not exist while JRADs were available. 71 Consequently, many noncitizens convicted of crimes did not end up in removal proceedings. 72 Therefore, criminal defense attorneys were understandably apprehensive about putting immigration officials on notice that a client had been convicted of a deportable offense. 73 Third, many criminal sentencing judges were reluctant to issue JRADs because they did not feel comfortable interpreting immigration 74 law.

Immigration authorities were similarly opposed to JRADs because they did not believe that a criminal sentencing judge knew enough about immigration law to bind an immigration enforcement agency. 75 A defense attorney could sometimes overcome a judge's reluctance to make a binding recommendation on immigration authorities by reminding the judge of the JRAD's original purpose, viz., to avoid the often unjust dual punishment of a criminal sentence followed by deportation. 76 However, once the JRAD was repealed in 1990, it was forever inaccessible.

Section 212(c) Waiver of Deportation

Like the JRAD, the former § 212(c) waiver of deportation has its origins in the 1917 Act. Unlike the JRAD, the § 212(c) waiver was a form of discretionary relief granted by immigration officials rather than criminal sentencing judges. The discretionary waiver was available to noncitizens with criminal convictions—including drug-related offenses—who had established domicile in the United States for at least seven years. 77 To be eligible for the waiver, an applicant had to demonstrate that positive discretionary factors outweighed the negative discretionary factors. 78 Positive discretionary factors included length of residence in the United States, family ties in the United States, hardship to the applicant and the applicant's family members, and evidence of good moral character. 79 Conversely, negative discretionary factors included the extensiveness and 80 seriousness of the applicant's criminal record, other violations of the immigration laws, and evidence of poor character.

The “Seventh Proviso” to Chapter 29 of the 1917 Act was the precursor to the § 212(c) waiver. 81 The Seventh Proviso gave immigration authorities discretion to admit noncitizens seeking entry after a short trip abroad despite an applicable ground of exclusion. 82 In 1940, Seventh Proviso relief eligibility was extended by the Attorney General to noncitizens already in the United States. In Matter of L-, the Attorney General concluded that a noncitizen subject to deportation for a larceny conviction could apply for nunc pro tunc Seventh Proviso relief based on a previous entry. 83 The Attorney General reasoned that “judgment ought not to depend upon the technical form of the proceedings. No policy of Congress could possibly be served by such irrational result.” 84 Two years later, the Attorney General further expanded eligibility for Seventh Proviso relief to noncitizens with a qualifying entry even if the entry was unlawful or fraudulent. 85 In 1946, the Board of Immigration Appeals (BIA) again broadened eligibility for Seventh Proviso relief to qualifying noncitizens even if they had not left the country at all and therefore 86 made no subsequent reentry.

In 1952, Congress codified Seventh Proviso relief at § 212(c) of the INA. 87 In so doing, Congress curtailed eligibility for the 88 discretionary waiver by restricting its availability to LPRs who were lawfully seeking admission after a brief trip abroad. Congress was particularly concerned with the Attorney General's decision to afford Seventh Proviso relief to noncitizens despite 89 a fraudulent entry.

While the language of the § 212(c) waiver remained unchanged until 1990, use of the discretionary waiver expanded greatly for the next four decades due to agency and judicial interpretation. 90 As drafted, the § 212(c) waiver applied only to LPRs returning from a trip abroad who were put into exclusion proceedings, but, like agency interpretation of Seventh Proviso relief, § 212(c) waiver eligibility was soon extended to LPRs who were in the country already but made a previous qualifying entry. 91 In 1976, the Second Circuit further extended § 212(c) waiver eligibility to LPRs who had never left the country and consequently did not make a return entry. 92 The court reasoned that the reentry requirement relied on nothing more than “irrelevant and fortuitous factors.” 93 Interpreting legislative intent, the court noted: Congress was concerned that there be some degree of flexibility to permit worthy returning aliens to continue their relationships with family members in the United States despite a ground for exclusion. … The government has failed to suggest any reason why this petitioner's failure to travel abroad following his conviction should be a crucial factor in determining whether he may be permitted to remain in this country. Reason and fairness would suggest that an alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave 94 and return from time to time.

The IMMACT 1990, which repealed the JRAD, also eliminated § 212(c) waiver eligibility for LPRs with an aggravated felony conviction for which at least a five-year term of imprisonment had been ordered. 95 Approximately one year later, Congress further restricted § 212(c) waiver eligibility by expanding the aggravated felony bar. The Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 revised the statute to bar an LPR from eligibility for the § 212(c) waiver if 96 the LPR had one or more aggravated felony convictions for which the combined term of imprisonment was at least five years.

The final amendments to the § 212(c) waiver, before its subsequent repeal, appeared in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA further increased the number of LPRs ineligible for the discretionary § 212(c) waiver by barring eligibility for individuals with a single aggravated felony conviction—regardless of the term of imprisonment, a drug offense, multiple CIMTs, or a firearms offense. 97 Shortly after the passage of the AEDPA, the Illegal Immigration 98 Reform and Immigrant Responsibility Act of 1996 (IIRIRA) repealed § 212(c) altogether.

Congress eliminated the § 212(c) waiver because it believed that judges were granting it too frequently. During congressional debates, one member of Congress claimed that, “for the past 8 years … 212(c) relief has been granted to more than half of all who apply, the vast majority of whom are criminal aliens, amounting to thousands of criminal aliens per year.” 99 Immigration officials—arguably those in the best position to opine on whether the waiver was being overused—were concerned about the complete elimination of the § 212(c) waiver. They knew that many noncitizens with minor criminal convictions who were supposedly not the intended targets of the 1996 laws would be left without a defense to deportation if the waiver was eliminated. 100 In the opinion of one immigration judge interviewed by Human Rights Watch about the use of the § 212(c) waiver, “[i]t is true that judges often granted 212(c) relief, but that was because immigration judges often saw deserving cases. Congress did not accept that fact, and so took judicial discretion away.” 101 Sen. Ted Kennedy again voiced his concern about the radical elimination of § 212(c) waiver during congressional debates: [T]his amendment virtually eliminates the Attorney General's flexibility to grant discretionary relief from deportation for long-time permanent residents convicted of lesser crimes … . [T]his discretionary relief would be denied to permanent residents for carrying a concealed firearm, drug abuse or addiction, in which no conviction would even be required, and drug offense involving more than 30 grams of marijuana, and other such crimes. They could live here productively for 30 years and have an American citizen wife and 102 children. But for them, it is one strike and you are out.

The discretionary waiver was eliminated without seriously considering the important role that it played in the immigration 103 removal system.

CONGRESSIONAL INTENT TO ERODE JUDICIAL DISCRETION FROM THE 1990s TO THE PRESENT As noted above, legislation in the 1990s was the result of a larger policy shift toward expediting the removal process of noncitizens with criminal convictions. 104 In 1996, legislative changes to the discretionary § 212(c) waiver, as well as other sections of the INA, were hastily and irresponsibly passed by Congress as it rushed to demonstrate that it was tough on crime and terrorism heading into the 1998 national elections. 105 One U.S. senator lamented that the process was too rushed and opaque considering the extreme repercussions on the immigration system: [I]t was … essentially a closed process. Not only were many of the members of the conference committee not given the opportunity to participate, at the conclusion of the conference they were not even allowed to offer amendments to try to modify provisions which were found to be objectionable. So we have a product

today which has not had the kind of thoughtful dialog and debate which we associate with a conference 106 report which is presented to the US Senate for final consideration.

The urgency to pass legislation was largely precipitated by three events: (1) the 1993 World Trade Center bombing, 107 (2) California's anti-immigrant Proposition 187 in 1994, 108 and (3) the 1995 Oklahoma City bombing (which was ironically committed by native-born U.S. citizens). 109 Congress believed that by deporting noncitizens with criminal convictions it could help prevent further domestic crime and terrorist attacks on U.S. soil. Congress lumped together criminal activity and terrorist activity. The White House encouraged that strategy by treating terrorist attacks as criminal acts in order to “depoliticize” and “delegitimate” them. 110 Proponents of the 1996 legislation opined: [C]riminal alien provisions in [AEDPA] … are also important to the terrorist issue, because oftentimes we find that terrorists or would-be terrorists are criminal aliens and we are not deporting them in a proper fashion … . The sooner we get them out of the country, the better procedures we have for that, the less likely we are to have that element in this country either create the actual acts of terrorism or directing them 111 in some manner. We need to kick these people out of the country… .

U.S. Rep. Lamar Smith's remarks most succinctly summarized congressional sentiment at the time: “[T]he forgotten Americans —the citizens who obey the law, pay their taxes, and seek to raise their children in safety—will be protected from the criminals 112 and terrorists who want to prey on them.”

Appearing tough on “criminal aliens” was a winning campaign strategy for Congress regardless of whether noncitizens with criminal convictions were at all to blame for the recent terrorist attacks. However, former General Counsel to the INS and University of Virginia School of Law Professor David Martin aptly noted that “the ‘criminal alien’ slogan, for all its power on the campaign trail, embraces a vast spectrum of human character and behavior. Some such criminals are truly dangerous, but a 113 large fraction of this class made single mistakes or had shown genuine rehabilitation and remorse.”

Some legislators failed to realize the wide-ranging scope of the new 1996 laws even after they were enacted and enforced. For example, Rep. Smith denied the fact that the 1996 laws would result in the deportation of noncitizens with minor or nonviolent convictions. 114 When confronted with the reality that minor crimes, such as shoplifting, were often used as the basis for 115 deportation, Rep. Smith brushed off the notion as merely “a view peddled in the media by immigration lawyers.”

Other members of Congress recognized that the policies of the 1996 laws would have unfair repercussions for many noncitizens because an immigration judge's authority to exercise discretion was largely eliminated. Speaking about the elimination of discretion in the 1996 laws, Sen. Kennedy stated: It applies to all criminal aliens, regardless of the gravity of their offenses … . [W]hether they are murderers or petty shoplifters. An immigrant with an American citizen wife and children sentenced to 1-year probation for minor tax evasion and fraud would be subject to this procedure. And under this provision, he would be 116 treated the same as ax murderers and drug lords.

Even President Bill Clinton noted the harsh consequences. Upon signing the AEDPA, he stated that “[t]his bill … makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions 117 eliminate most remedial relief for long-term legal residents … .”

Congress made several failed attempts to undo some of the most damaging provisions of the 1996 laws shortly after they passed. The Fairness for Permanent Residents Act of 1999, which would have repealed much of the 1996 laws, appeared to have the best chance of enactment. The bill was introduced by Rep. Bill McCollum, who was originally a supporter of the egregious 1996 laws. The House of Representatives passed the bill, and President Clinton indicated that he would sign it, but the bill became bogged down in the Senate due to infighting about the allocation of visas, and it subsequently died. 118 The bill generally reflected concerns voiced by members of Congress, such as Rep. Bob Filner, who summarized the 1996 laws as defining people “as felons in a new way. They were picked up off the streets in the middle of the night, deported without due process—and 119 these were legal people, here legally, but may have committed some crime, even shoplifting 20 or 30 years ago.”

A year after the Fairness for Permanent Residents Act died, Sen. Kennedy sponsored a Senate bill that recognized that current immigration laws “punish legal residents out of proportion to their crimes.” 120 Had it passed, the bill would have repealed many of the harmful provisions of the 1996 laws. 121 Rep. John Conyers, Jr. sponsored a similar bill the same year known as the “Fix ‘96” bill. 122 The “Fix ‘96 bill” would have afforded immigration judges discretion to prevent the deportation of 123 noncitizens who could show that their deportation would result in extreme hardship to their legally present family members. Unfortunately, neither bill was passed by Congress.

Rep. Conyers reintroduced the “Fix ‘96” bill in 2002 and explained that it merely “restores fairness to the immigration process by making sure that each person has a chance to have their case heard by a fair and impartial decision maker. No one here is looking to give immigrants a free ride, just a fair chance.” 124 In 2007, Rep. Joseé Serrano sponsored a similar bill that would have restored some discretion to immigration judges in removal proceedings involving the removal of a noncitizen parent of a 125 126 U.S.-citizen child. Like the bills proposed in 2000, these bills failed to pass either body of Congress.

CONCLUSION As Congress contemplates immigration reform, it would be wise to restore adjudicatory discretion to crime-based removal proceedings. President Obama's draft immigration reform bill makes some strides to give immigration judges more discretion. 127 The Senate's immigration reform bill likewise allows immigration judges to exercise some discretion in limited situations. 128 However, neither bill sufficiently corrects the dearth of adjudicatory discretion in current crime-based removal proceedings.

In a recent op-ed, former Immigration Judge Paul Grussendorf emphasized the need for more adjudicatory discretion in current immigration reform legislation: Federal legislation should include a waiver that allows immigration judges the discretion to grant relief from deportation in deserving cases by weighing the age of the conviction, the severity of the offense, evidence of rehabilitation, substantial family ties in the United States and other factors relevant to the public interest. As the federal reform bill is drafted and debated, lawmakers must revisit [the 1996 legislative] provisions and restore fairness and flexibility to our system by expanding the authority of immigration judges. The 129 time is now for Congress to ensure that everyone has a fair day in court … .

In a statement to the Senate Judiciary Committee, Grussendorf attempted to allay any concerns that judges were somehow incapable of doing anything other than mechanically applying immigration laws: “Judges are drawn from the ranks of immigration professionals, those who have spent their careers working in government as well as those who have advocated on the side of immigrants. They should be trusted to make the correct calls.” 130 Judges must be allowed to perform their basic

duties as officials appointed to do just what their title suggests—make judgments based on the law and their own assessment of an individual's unique circumstances.

* Mr. Torrey is a Lecturer on Law and Clinical Instructor with the Harvard Immigration and Refugee Clinical Program at Harvard Law School. He is also the Supervising Attorney for the Harvard Immigration Project, and he teaches a course at Harvard Law School on the intersection of criminal law and immigration law. Mr. Torrey extends his gratitude to Deborah Anker and his colleagues at the Harvard Immigration and Refugee Clinical Program for their inspiration and editorial help as well as a special thanks to Eszter Vincze for her research assistance.

Footnotes 1 Ercolani, Why are Immigrants Being Deported for Minor Crimes? The Atlantic (Nov. 20, 2013), http://www.theatlantic.com/national/ archive/2013/11/why-are-immigrants-being-deported-for-minor-crimes/281622/.

2 Id.

3 See id.

4 See id. “An alien who is convicted of an aggravated at any time after admission is deportable.” INA § 237(a)(2)(iii) [8 U.S.C.A. § 1227(a)(2)(iii)]. Aggravated felonies include a myriad of crimes, including but not limited to murder, rape, sexual abuse of a minor, illicit trafficking in drugs or firearms, theft offenses for which a term of imprisonment of at least one year is imposed, and document fraud for which a term of imprisonment of at least one year is imposed. Id. INA § 101(a)(43)(A), (B), (G), (P) [8 U.S.C.A. § 1101(a) (43)(A), (B), (G), (P)].

5 See id.

6 See id.

7 See id.

8 See id.

9 See id.

10 For example, in Fiscal Year (FY) 2012, DHS removed 40,448 noncitizens convicted of crimes involving drugs (including simple possession) and 36,166 noncitizens convicted of driving under the influence. See Press Release, “U.S. Immigration and Customs Enforcement, FY 2012: ICE announces year-end removal numbers, highlights focus on key priorities and issues new national detainer guidance to further focus resources” (Dec. 21, 2012), available at http://www.ice.gov/news/ releases/1212/121221washingtondc2.htm.

11 This Briefing mainly focuses on the crime-based grounds of deportability pursuant to INA § 237 [8 U.S.C.A. § 1227] rather than the crime-based grounds of inadmissibility pursuant to INA § 212 [8 U.S.C.A. § 1182].

12 Discretion can be exercised at different phases of a removal proceeding. For example, DHS may exercise discretion in determining whether to initiate removal proceedings against a noncitizen or whether to detain a noncitizen for the duration of his or her removal proceedings. See memorandum from U.S. Immigration and Customs Enforcement Director John Morton to all field office directors, all special agents in charge, all chief counsel, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (June 17, 2011), discussed and reproduced in 88 Interpreter Releases 1542, 1568 (June 27, 2011) and available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial- discretion-memo.pdf; see also Wadhia, The Role of Prosecutorial Discretion in Immigration, 9 Conn. Pub. Int. L.J. 243 (2010). This

Briefing specifically focuses on the role of judicial discretion in considering equitable factors when determining whether a noncitizen is deportable.

13 See Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy 6 (2007), available at http://hrw.org/reports/2007/us0707/us0707web.pdf (hereinafter “Human Rights Watch”) (“US immigration law fails to [allow] immigration judges to balance the individual's crime against his or her family relationships, length of time in the US, military service, economic ties to the US, likelihood of persecution, or lack of connections to the country of origin.”); see also infra note 25 (explaining that Luxembourg is the only other Western nation not to consider discretionary factors in removal proceedings). There are some limited forms of discretionary relief available to lawfully present noncitizens with criminal offenses. For example, asylum may be available to noncitizens who fear persecution if returned to their home countries and who do not have “aggravated felony” convictions. See Anker, Law of Asylum in the United States § 6:17. Cancellation of removal is another form of discretionary relief available to LPRs who have, again, not committed crimes categorized as aggravated felonies. See INA § 240A(a) [8 U.S.C.A. § 1229b(a) ].

14 Padilla v. Kentucky, 559 U.S. 356, 364, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (internal citations omitted).

15 See U.S. v. Booker, 543 U.S. 220, 233, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (“We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.”).

16 See Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S. Ct. 512, 96 L. Ed. 586 (1952) (“Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”).

17 See Immigration Policy Center, From Anecdotes to Evidence: Setting the Record Straight on Immigrants and Crime (July 25, 2013), available http://immigrationpolicy.org/just-facts/anecdotes-evidence-setting-record-straight-immigrants-and-crime-0 (showing that native-born men are five times more likely to end up in criminal custody than foreign-born men) (“The problem of crime in the United States is not caused or even aggravated by immigrants … .”).

18 Kanstroom, The Better Part of Valor: The REAL ID Act, Discretion, and the “Rule” of Immigration Law, 51 N.Y.L. Sch. L. Rev. 161, 162 (2007).

19 See, e.g., Human Rights Watch, supra note 13, at 6 (“based on the 2000 US Census, we estimate that approximately 1.6 million spouses and children living in the United States were separated from their parent, husband, or wife because of [U.S. deportation policies]”).

20 Padilla, 559 U.S. at 359 (holding that the Sixth Amendment requires defense counsel to advise noncitizen clients about the immigration consequences of pleading guilty to criminal charges).

21 Padilla, 559 U.S. at 359.

22 Padilla, 559 U.S. at 359.

23 Padilla, 559 U.S. at 359.

24 Padilla, 559 U.S. at 360 (internal citations omitted).

25 See Kanstroom, The Better Part of Valor: The REAL ID Act, Discretion, and the “Rule” of Immigration Law, 51 N.Y.L. Sch. L. Rev. 161, 163 (2007) (“Due to the harshness and rigidity of our current deportation laws and the powerful role historically played by discretion in immigration law—often the last repository of mercy in an otherwise merciless system—the issue of discretion is crucially important.”). The United States is an anomaly amongst other Western countries because of its reluctance to consider equitable factors in removal proceedings. Human Rights Watch, supra note 13, at 6 (noting that, of all Western countries, Luxembourg is the only country that also does not consider discretionary factors in removal proceedings). See generally Collicelli, Note, Affording Discretion to Immigration Judges: A Comparison of Removal Proceedings in the United States and Canada, 32 B.C. Int'l & Comp. L. Rev. 115 (2009) (arguing that the United States should follow Canada's lead and allow immigration judges to consider discretionary factors, especially when children are being harmed after the deportation of a parent).

26 Vandello, Perspective of an Immigration Judge, 80 Denv. U. L. Rev. 770, 775 (2003).

27 See infra notes 61–66, 99–103, and accompanying text.

28 U.S. Deportation Proceedings in Immigration Courts, TRAC Immigration, http://trac.syr.edu/immigration/ (follow “all immigration tools” hyperlink; then follow “Deportation Proceedings in Immigration Courts” hyperlink); id. (follow “all immigration tools” hyperlink; then follow “U.S. Deportation Outcomes by Charge”).

29 See Human Rights Watch, Forced Apart (By the Numbers): Non-citizens Deported Mostly for Nonviolent Offenses 2 (2009), available at http://www.hrw.org/sites/default/files/reports/us0409web.pdf.

30 See id.

31 See 53 Cong. Rec. 5171 (1916) (statement of Rep. Powers) (“[A]t the time the judgment is rendered and at the time the sentence is passed, the [criminal sentencing] judge is best qualified to make these recommendations.”).

32 The 1917 Act stated that, in the case of an “alien” committing a “crime of moral turpitude”: [D]eportation [shall not] be made or directed if the court, or judge thereof, sentencing such alien for such crime shall at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this Act … . Immigration Act of 1917, Pub. L. No. 301, ch. 29, § 19, 39 Stat. 889, codified at 8 U.S.C.A. § 155(a) (repealed 1990). The Immigration Act of 1917 also created the first crime-based removal grounds. See id. § 3 (excluding “persons who have been convicted of or admit having committed a felony or … misdemeanor involving moral turpitude”).

33 Immigration Act of 1917, Pub. L. No. 301, ch. 29, § 19, 39 Stat. 889, codified at 8 U.S.C.A. § 155(a) (repealed 1990).

34 See id. The Department of Labor was the agency responsible for immigration enforcement in 1917 and therefore bound by a JRAD. Id.

35 See generally Harms, Redefining “Crimes involving moral turpitude”: A Proposal to Congress, 15 Geo. Immigr. L.J. 259 (2001) (dividing CIMTs into four main categories: (1) crimes against property, (2) fraud, (3) crimes against persons, and (4) crimes concerning sexual assault and domestic violence). For a comprehensive review of CIMTs see Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, 90 Neb. L. Rev. 647 (2012).

36 See 53 Cong. Rec. 5169 (1916) (statement of Rep. Sabath).

37 See Immigration Act of 1917, Pub. L. No. 301, ch. 29, § 19, 39 Stat. 889 (to be codified at 8 U.S.C.A. § 155(a) (repealed 1990)). The 30-day requirement was strictly enforced, and the immigration authorities would not give effect to nunc pro tunc orders. See Fullerton and Kingstein, Strategies for Ameliorating the Immigration Consequences of Criminal Convictions: A Guide for Defense Attorneys, Immigr. & Nat'lity L. Rev. 491, 505–06 (1988).

38 See 53 Cong. Rec. 5169–71 (1916) (amendment of Rep. Sabath). There was also some concern that, if enough time passed, a different judge may be forced to adjudicate a JRAD request, and he or she would not be as familiar with the facts necessary to perform the proper analysis. Id. at 5170 (statement of Rep. Howard).

39 See 53 Cong. Rec. 5169 (1916) (statement of Rep. Sabath); see also U.S. v. Bodre, 948 F.2d 28, 41 (1st Cir. 1991) (Bownes, J., dissenting) (“The JRAD decision, like the sentencing decision itself, is based on the judge's view of the appropriate punishment for the conviction.”); Janvier v. U.S., 793 F.2d 449, 453 (2d Cir. 1986) (recounting the legislative history and concluding that JRADs were “designed to make the total penalty for the crime less harsh and less severe when deportation would appear to be unjust”). In Fong Yue Ting v. United States, the U.S. Supreme Court held that deportation was not a form of punishment but instead an administrative action used to purge the United States of “undesirable” noncitizens. Fong Yue Ting v. U.S., 149 U.S. 698, 730, 13 S. Ct. 1016, 37 L. Ed. 905 (1893). In his dissent, Justice Brewer wrote:

If the banishment of an alien from a country … where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for … be not a punishment, and among the severest of punishments, it will be

difficult to imagine a doom to which the name can be applied. 149 U.S. at 740–41.

40 See S. Rep. No. 352, at 15 (1916).

41 See, e.g., 53 Cong. Rec. 5169 (statement of Rep. Sabath) (asserting that deportation may be “too harsh” a penalty for someone convicted of a minor offense, or for a noncitizen who “may have married an American woman and may have children”). In 1976, the First Circuit noted that the use of JRADs was “motivated as much by mercy as by rehabilitation.” See Kolios v. Immigration and Naturalization Service, 532 F.2d 786, 789 (1st Cir. 1976). As discussed below, JRADs were later codified at § 241(b) of the INA [8 U.S.C.A. § 1231(b)], but there is a dearth of legislative history on § 241(b). Courts were left to analyze congressional intent based on congressional debates leading up to passage of the 1917 Act.

42 Tutrone v. Shaughnessy, 160 F. Supp. 433, 437 (S.D. N.Y. 1958).

43 Tutrone, 160 F. Supp. at 437.

44 Narcotic Control Act of 1956, Pub. L. No. 84-728, ch. 629, § 301(b), (c), 70 Stat. 651 (July 25, 1956). The penalties created by the 1956 Act were wide-reaching and extremely harsh. See, e.g., id. § 107(i) (authorizing the death penalty for sale of heroin to a minor).

45 See U.S. Senate Comm. on the Judiciary, The Illicit Narcotics Traffic, S. Doc. No. 1440 (2d Sess. 1955).

46 Id.

47 Id. at 3; see also Narcotic Control Act of 1956, Pub. L. No. 728, § 301, 70 Stat. 575 (1956).

48 See Jew Ten v. Immigration and Naturalization Service, 307 F.2d 832, 834 n. 3 (9th Cir. 1962).

49 H.R. Rep. No. 84-2388 (1956), reprinted in 1956 U.S.C.C.A.N. 3274, 3285.

50 Id. at 3304. Drug-related removal continues to be a substantial basis for the deportation of noncitizens. In 2012, more than 17% of crime-based removals were based on drug offenses. See DHS, FY2012 Removal Statistics (2012), available at http://www.ice.gov/ removal-statistics/2012statistics.htm (follow hyperlink “criminal aliens”).

51 See Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (June 27, 1952); Ex parte Robles-Rubio, 119 F. Supp. 610, 613 (N.D. Cal. 1954). Prior to 1952, laws concerning the exclusion and deportation of noncitizens were embedded in several parts of the U.S. Code. The Center for Migration Studies of New York, Inc., The Immigration and Nationality Act of 1952 as Amended Through 1961, 1 Int'l Migration Digest 34, 34 (1964). The Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter Act, combined most immigration-related laws under Title 8 of the U.S. Code. See id.

52 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 241(a)(11), 66 Stat. 163, 206–07 (June 27, 1952).

53 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 241(a)(11), 66 Stat. 163, 206–07 (June 27, 1952).

54 See Jew Ten v. Immigration and Naturalization Service, 307 F.2d 832, 834 (9th Cir. 1962).

55 H.R. Rep. No. 84-2388 (1956), reprinted in 1956 U.S.C.C.A.N. 3321. In those cases, the judges interpreted the “savings clause” of the 1952 Act broadly to maintain JRAD eligibility for noncitizens with drug-related offenses. See U.S. ex rel. De Luca v. O'Rourke, 213 F.2d 759, 764-65 (8th Cir. 1954) (“Unless there is such a specific provision, it would seem that the savings clause is broad enough to preserve the efficacy of the recommendation of the sentencing judge and to prevent the deportation of the alien because of the [narcotics] conviction.”); Ex parte Robles-Rubio, 119 F. Supp. 610, 613 (N.D. Cal. 1954) (“Consequently, I hold that, by virtue of the savings clause in the 1952 Act, the previous recommendation against deportation continues to relieve petitioner from deportation as a narcotic offender.”); see also Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 405(a), 66 Stat. 163

(June 27, 1952) (“Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect … status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect.”).

56 Jew Ten, 307 F.2d at 834.

57 Pub. L. No. 100-690, § 7344, 102 Stat. 4181, 4470–71 (Nov. 18, 1988).

58 INA §§ 101(a)(43), 237(a)(2)(A)(iii), 238(c) [8 U.S.C.A. §§ 1101(a)(43), 1227(a)(2)(A)(iii), 1228(c)] (2006). “An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States,” INA § 238(c).

59 See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7344, 102 Stat. 4181, 4470–71 (Nov. 18, 1988).

60 See Menses, The Deportation of Lawful Permanent Residents for Old and Minor Crimes: Restoring Judicial Review, Ending Retroactivity, and Recognizing Deportation as Punishment, 14 Scholar 767, 812 (2012).

61 Immigration Act of 1990, Pub. L. No. 101-649, § 505(a), 104 Stat. 4978, 5050 (Nov. 29, 1990).

ELIMINATION OF JUDICIAL RECOMMENDATIONS AGAINST DEPORTATION. (1) IN GENERAL.—Section 241(b) (8 U.S.C. 1251(b)) is amended— (1) in the first sentence— (A) by striking “(1)”, and (B) by striking “, or (2)” and all that follows up to the period at the end; and (2) in the second sentence, by inserting “or who has been convicted of an aggravated felony” after “subsection (a)(11) of this section.” Immigration Act of 1990, Pub. L. No. 101-649, § 505(a), 104 Stat. 4978, 5050 (Nov. 29, 1990). IMMACT 90 also restricted or eliminated other forms of discretionary relief for noncitizens convicted of aggravated felonies, including waivers under § 212(c), grants of asylum, suspension of deportation, withholding of deportation, and voluntary departure. Id. Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 Geo. Immigr. L.J. 665, 676 (2008). Moore speculates that Congress repealed JRADs to give exclusive decision-making power over immigration consequences to the federal authorities. Id.

62 See Schuck and Williams, Removing Criminal Aliens: The Promises and Pitfalls of Federalism, 22 Harv. J. L. & Pub. Pol'y, 367, 437 (1999).

63 See id. at 437–38.

64 See id. at 438.

65 See Taylor and Wright, The Sentencing Judge as Immigration Judge, 51 Emory L.J. 1131, 1150 (2002).

66 See, e.g., Schuck and Williams, Removing Criminal Aliens: The Promises and Pitfalls of Federalism, 22 Harv. J. L. & Pub. Pol'y, 367, 438 (1999) (“Convinced that aliens' procedural rights had gotten out of hand, Congress eliminated JRAD relief … .”); Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 Geo. Immigr. L.J. 665, 676 (2008).

67 Taylor and Wright, The Sentencing Judge as Immigration Judge, 51 Emory L.J. 1131, 1148–49 (2002).

68 U.S. v. Sanchez-Guzman, 744 F. Supp. 997, 999 (E.D. Wash. 1990); see also Janvier v. U.S., 793 F.2d 449, 456 (2d Cir. 1986) (Bartels, J., concurring) (“in my experience as a district court judge, such requests for a recommendation … very seldom have been made in the past”).

69 Taylor and Wright, The Sentencing Judge as Immigration Judge, 51 Emory L.J. 1131, 1149 (2002) (“Fewer than one thousand noncitizen offenders were deported each year for most of the period that JRADs were available.”).

70 Id. at 1149–50.

71 Id. at 1150.

72 Id.

73 Id. (citing Kesselbrenner and Rosenberg, Immigration Law and Crimes, G-18–G-20 (Norton Tooby updating ed., 2001) (addressing strategic concerns relating to the filing of a JRAD request)).

74 See, e.g., Santos v. Kolb, 880 F.2d 941, 943 n. 4 (7th Cir. 1989) (“[t]he policy of this Court is not to make recommendations to the Immigration and Naturalization Service in any case. My belief is that the Immigration and Naturalization Service should make its determination based upon all the facts”).

75 Taylor and Wright, The Sentencing Judge as Immigration Judge, 51 Emory L.J. 1131, 1150 (2002).

76 Id.

77 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 212(c), 66 Stat. 163, 187 (June 27, 1952) (codified at 8 U.S.C.A. § 1182(c) (1994 ed.), repealed 1996).

78 See infra notes 79, 80, and accompanying text.

79 See Matter of Marin, 16 I. & N. Dec. 581, 1978 WL 36472 (B.I.A. 1978) (citing Carrasco-Favela v. Immigration & Naturalization Service, 563 F.2d 1220 (5th Cir. 1977)); Matter of Edwards, 10 I. & N. Dec. 506, 1964 WL 12077 (B.I.A. 1964); Matter of M-, 3 I. & N. Dec. 804, 1949 WL 6547 (B.I.A. 1949) (analyzing the Seventh Proviso); Matter of V-, 1 I. & N. Dec. 293, 1942 WL 6537 (B.I.A. 1942) (same); Matter of G-, 1 I. & N. Dec. 8, 1940 WL 7545 (A.G. 1940) (same).

80 See Matter of Marin, 16 I. & N. Dec. 581, 1978 WL 36472 (B.I.A. 1978) (citing Carrasco-Favela v. Immigration & Naturalization Service, 563 F.2d 1220 (5th Cir. 1977)); Matter of Edwards, 10 I. Matter of M-, 3 I. & N. Dec. 804, 1949 WL 6547 (B.I.A. 1949) (analyzing the Seventh Proviso); Matter of V-, 1 I. & N. Dec. 293, 1942 WL 6537 (B.I.A. 1942) (same); Matter of G-, 1 I. & N. Dec. 8, 1940 WL 7545 (A.G. 1940) (same).

81 Immigration Act of 1917, Pub. L. No. 301, ch. 29 § 3, 39 Stat. 874 (Feb. 5, 1917) (“[A]liens returning after a temporary absence to an unrelinquished domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and upon such conditions as he may prescribe.”).

82 Immigration Act of 1917, Pub. L. No. 301, ch. 29 § 3, 39 Stat. 874 (Feb. 5, 1917).

83 See Matter of L-, 1 I. & N. Dec. 1, 1940 WL 7544 (A.G. 1940). Prior to Matter of L-, Seventh Proviso relief was available to noncitizens in deportation proceedings in a very narrow set of circumstances when immigration authorities granted voluntary departure to the noncitizens then initiated a preexamination procedure and allowed advance exercise of the Seventh Proviso. See Griffith, Exclusion and Deportation—Waivers under Section 212(c) and Section 244(a)(1) of the Immigration and Nationality Act, 32 DePaul L. Rev. 523, 528 n.29 (1982).

84 Matter of L-, 1 I. & N. Dec. 1, 5, 1940 WL 7544 (A.G. 1940).

85 See Matter of H-, 1 I. & N. Dec. 166, 1941 WL 7936 (A.G. 1941) (listing previous Board decisions granting Seventh Proviso relief to applicants who originally entered illegally and examining legislative intent before concluding that Seventh Proviso relief is available to applicants even after an unlawful entry).

86 See Matter of A-, 2 I. & N. Dec. 459, 1946 WL 6038 (B.I.A. 1946) (holding that the fact that the noncitizen had not made a reentry was not a bar to the exercise of discretionary relief).

87 Immigration and Nationality Act of 1952 § 212(c), Pub. L. No. 82-414, ch. 477, 66 Stat. 187 (June 27, 1952) (codified at 8 U.S.C.A. § 1182(c) (1994 ed.), repealed 1996): Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be admitted in the discretion of

the Attorney General without regard to the provisions of paragraph (1) through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under

section 211(b). Id.

88 Immigration and Nationality Act of 1952 § 212(c), Pub. L. No. 82-414, ch. 477, 66 Stat. 187 (June 27, 1952) (codified at 8 U.S.C.A. § 1182(c) (1994 ed.), repealed 1996).

89 See S. Rep. No. 81-1515, at 382 (1950) (“A review of the administrative cases shows that the Seventh Proviso has been exercised where the alien originally entered the United States on a passport fraudulently obtained, on a passport to which the alien was not entitled, as a deserter, with a fraudulently obtained visa, with a forged visa, or without a visa.”).

90 See Barr, C is for Confusion: The Torturous Path of Section 212(c) Relief in the Deportation Context, 12 Lewis & Clark L. Rev. 725, 730 (2008) (describing the initial agency decision to extend relief nunc pro tunc in deportation proceedings to applicants who had reentered and the subsequent judicial decision to extend relief to applicants who were otherwise eligible but had not departed).

91 See, e.g., Matter of G- A-, 7 I. & N. Dec. 274, 1956 WL 10272 (B.I.A. 1956) (granting nunc pro tunc § 212(c) relief based on the noncitizen's prior entry); Matter of Edwards, 10 I. & N. Dec. 506, 1964 WL 12077 (B.I.A. 1964) (holding that a noncitizen who had been convicted of two CIMTs was deportable, but eligible for § 212(c) discretionary relief because he was able to demonstrate that several months after his last conviction he left the country for a few hours to attend a funeral in Canada).

92 Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir. 1976) (holding that prohibiting § 212(c) eligibility to LPRs who had not traveled abroad was a violation of equal protection under the Fourteenth Amendment). The BIA subsequently adopted the Francis decision in Matter of Silva, 16 I. & N. Dec. 26, 1976 WL 32326 (B.I.A. 1976).

93 See Francis, 532 F.2d at 273.

94 See Francis, 532 F.2d at 273.

95 See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052 (Nov. 29, 1990). Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) (other than subparagraphs (A), (B), (C), or (E) or paragraph (3)). … The first sentence of this subsection shall not apply to an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years. Id. (emphasis added).

96 Miscellaneous Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306(a)(10), 105 Stat. 1733, 1751 (Dec. 12, 1991). Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General … . The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years. Id. (emphasis added).

97 Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General … . This subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 237(a)(2)(A) (iii) [aggravated felony], (B) [controlled substance offenses], (C) [firearms offenses], or (D) [miscellaneous offenses], or any offense covered by section 237(a)(2)(A)(ii) [multiple CIMTs] for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 237(a)(2)(A)(i). Id. (emphasis added). The AEPDA also expanded the types of crimes that may qualify as an “aggravated felony.” See AEDPA § 440(e), amending INA § 101(a)(43) [8 U.S.C.A. § 1101(a)(43)] (1996) (adding 17 different types of offenses to the aggravated felony definition).

98 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 304, 110 Stat. 3009 (Sept. 30, 1996).

99 142 Cong. Rec. S1229 (daily ed. Oct. 3, 1996) (statement of Sen. Spencer Abraham).

100 Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 47 Sup. Ct. Rev. 47, 92 (2001).

101 Human Rights Watch, supra note 13, at 27 (citing interview with immigration judge on Oct. 26, 2006).

102 141 Cong. Rec. S7803 (daily ed. June 7, 1995) (statement of Sen. Kennedy).

103 Human Rights Watch, supra note 13, at 26.

104 See supra notes 61–66, 99–103, and accompanying text.

105 Human Rights Watch, supra note 13, at 16.

106 142 Cong Rec. 11514 (daily ed. Sept. 27, 1996).

107 See Dillon, Surge in Immigration to US Raises Public Anxiety, Spurs A Showdown in Congress, Christian Science Monitor (Dec. 17, 1993); Tackett and Horrock, Terrorism Prompting Immigration Review, Chicago Tribune (July 13, 1993).

108 Human Rights Watch, supra note 7, at 16 (citing telephone interview with University of Virginia Professor David Martin on Dec. 1, 2006).

109 See Seib and Harwood, Oklahoma City Terror Bombing May Intensify Hard-Line Views on Crime and Immigration, Wall St. J. (Apr. 21, 1995).

110 Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. Third World L.J. 81, 115 (2005) (quoting Dempsey, Crime or Act of War? Cato Inst. ¶¶ 2-3 (Sept. 25, 2001), available at http://www.cato.org/current/terrorism/ pubs/dempsey-010925.html).

111 142 Cong. Rec. H2247 (daily ed. Mar. 14, 1996) (statement of Rep. Bill McCollum).

112 142 Cong. Rec. H3605 (daily ed. Mar. 14, 1996) (statement of Rep. Smith). Some members of Congress did express concern about the unfounded conclusion that noncitizens with criminal convictions were somehow related to terrorists: [AEDPA] increases the number of criminal activities that legal aliens can be deported for. Most of the additional offenses are not required to be linked to terrorism …. I am deeply concerned that these provisions expand authorization for deportation of aliens without any association with crimes of violence or terrorism. 142 Cong. Rec. E645 (daily ed. Apr. 18, 1996) (statement of Rep. Patsy Mink).

113 Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 47 Sup. Ct. Rev. 47, 92 (2001).

114 See Smith, Immigration Facts, Washington Post (Feb. 16, 1998).

115 Id.

116 141 Cong. Rec. S7803 (daily ed. June 7, 1995) (statement of Sen. Kennedy).

117 Presidential Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996, 32 Weekly Comp. Pres. Doc. 720 (Apr. 24, 1996).

118 See Fairness for Permanent Residents Act of 1999, H.R. 5062, 106th Cong. (1999); Wolchock, Legislative Efforts to Restore Immigrant Rights, Human Rights Magazine (Winter 2001).

119 Press Release, U.S. Representative Bob Filner, House Democrats Hold News Conference on Justice Department Policies (June 5, 2003).

120 Immigrant Fairness Restoration Act of 2000, S. 3120, 106th Cong. (2000).

121 Id.

122 See Restoration of Fairness in Immigration Law Act of 2000, H.R. 4966, 106th Cong. (2000).

123 Id.

124 Press Release, U.S. Representative John Conyers, Jr., Conyers Re-Introduces the Omnibus “Fix ‘96” Immigration Bill (Mar. 7, 2002).

125 Discretionary Authority with Respect to Removal of Parents of Citizen Children, H.R. 213, 110th Cong. (2007).

126 Rep. Serrano reintroduced his bill in January 2013, but, as of this writing, it has not been enacted. See Discretionary Authority with Respect to Removal, Deportation, or Exclusion of Parents of Citizen Children, H.R. 406, 113th Cong. (2013).

127 Khimm, Obama wants judges to decide whether immigrants convicted of minor crimes should be deported, Washington Post (Feb. 20, 2013), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/02/20/obamas-plan-judges-leeway-deportation (“Buried in the White House's draft immigration bill is a new proposal that would give judges greater discretion to decide whether immigrants convicted of minor criminal offenses should be allowed to remain in the United States.”).

128 American Immigration Lawyers Association, AILA's Take on Discretion in S.744 (June 5, 2013).

129 Grussendorf, Immigration Judges Need Discretion, SFGate (Apr. 11, 2013), http://www.sfgate.com/opinion/openforum/article/ Immigration-judges-need-discretion-4428406.php.

130 Building an Immigration System Worthy of American Values: Hearing Before the Senate Comm. on the Judiciary, 112th Cong. 1 (2013) (statement of Paul Grussendorf), http://www.judiciary.senate.gov/pdf/3-20-13GrussendorfTestimony.pdf.

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