Originally uploaded at SSRN.


Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system is in tension with the principle that under a humane system of justice the penalty should fit the crime.

Judge Weinstein’s sentencing order in Aguilar points the way to an administrative reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. This essay argues that a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. Immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. While this presumption can and should be overcome in some situations, deportation should be the exception in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction. So long as Congress fails to restore adjudicative discretion to immigration judges or to rollback over-inclusive deportation grounds through legislative means, the system must rely on second-best solutions to achieve proportionality.