President-elect Donald Trump talks tough about immigration, threatening to deport an estimated 2 million to 3 million non-citizens who are “criminal and have criminal records.” Whether this is even possible given current nationwide backlogs in Immigration Courts of more than two years and limited detention capacity, a threat like this reinforces the menacing trope of the “criminal alien” without paying attention to the significant number of people with criminal records whose deportation would be a great injustice to their families and ignore their successful rehabilitation.
The immigration system offers little flexibility or relief to noncitizens convicted of most crimes. Immigration law, as well as anti-immigrant rhetoric, makes no distinctions between noncitizens convicted of most types of crimes even if they are lawfully present, have deep roots in, and make contributions, to the community and were convicted years ago.
Stories of inflexible and unfair treatment are common, and particularly devastating when they describe individuals who lawfully immigrated to the United States as children. For example, in the past month, a 41-year old Korean adoptee who came to this country when he was 3, only to be abused by his adoptive parents and then convicted of burglarizing their house to get this belongings, was deported, leaving behind his four children, who are U.S. citizens. In Connecticut, a U.S Army veteran was deported to his native Italy in 2012 over drug possession and larceny convictions, leaving behind his family. He arrived in the United States with his parents when he was 4, more than 50 years ago.
Because neither man had naturalized, they were detained for long periods of time and, ultimately, exiled to countries they had never known.
There is a solution to circumvent the harsh immigration laws — an unconditional executive pardon, which, under current law, provides a shield to most criminal grounds of deportation. Executive pardons historically have been used sparingly but recently have been reinvigorated by President Obama and New York Gov. Andrew Cuomo as a tool for mercy and corrective justice. Although they are rarely intended to explicitly help ameliorate immigration difficulties, prior to the end of his term in office, former New York Gov. David Patterson pardoned more than 30 people expressly to help them avoid deportation.
Pardons are a nimble and effective way to redress large-scale societal injustice since they require no legislative action. One example: In 1977, President Carter pardoned hundreds of thousands of Vietnam war “draft dodgers.” For this reason, the idea of pardons is catching on as a way to help immigrants. Some Congress members advocated a group pardon before the new administration takes office for immigrant youth now protected by President Obama’s deferred action program. Others propose a pardon for individuals here in violation of civil immigration laws. These are attractive, but quixotic, suggestions.
I offer another, more practical, proposal. Take a page from the point system used by Canada and New Zealand to determine eligibility for immigration. Develop a point system for lawful permanent residents at risk of deportation on account of criminal convictions as a basis for granting full, unconditional pardons. Points would be assigned to relevant factors relating to the conviction as well to the individual’s contributions to society, ties to the community and special health circumstances.
This fall, students at Brooklyn Law School submitted two pardon applications to Cuomo. One of our clients, a 35-year old lawful permanent resident since 1994 was convicted of two crimes when he was 19 and struggling emotionally and financially. He served his sentence, and then was placed in deportation proceedings. When he was released from custody in 2009, he worked consistently, paid taxes, earned a GED, and then both an associate’s and a bachelor’s degree. He married and has two beautiful girls. His entire extended family lives in the New York area. He has had no other contacts with the criminal justice system.
This is just one of the kind of sad, but not necessarily newsworthy, stories typical of many people facing deportation for crimes committed long ago. Many have been in the United States for decades since childhood. They have solid family and community ties, U.S. citizen dependents, gainful employment, medical or psychological problems and no support systems in the home country. Their removal will not serve to deter crime or make this country safer. It will cause hardship and pain to the people they leave behind.
Designate points for all of these positive and negative factors, add them up and if the person scores above a certain number — and set it high if that would make this a more salable proposal — grant a pardon. An objective point system would assure consistency and avoid charges of undue influence or partisanship. Using this system to show mercy and compassion would not only help the individual but also benefit the family and community they would be forced to abandon if deported.
Stacy Caplow is associate dean for Professional Legal Education and professor of law at Brooklyn Law School.