Deporting Immigrants for Hypothetical Crimes?

By Anthony Kammer

Last month, the Supreme Court handed down a 9–0 ruling in Carachuri-Rosendo v. Holder, clarifying the definition of an “aggravated felony” for purposes of the Immigration and Nationality Act (INA). The Court held that although Carachuri-Rosendo could have been charged with a federal felony, the mere possibility of such charges does not constitute a conviction for an “aggravated felony.” The government must actually obtain a conviction before imposing a punishment or seeking automatic deportation premised on that conviction. It is a shocking feature of U.S. immigration law that such an obvious-seeming point needed any clarification.

Jose Carachuri-Rosendo is a legal resident who has lived in the U.S. since age 5. Following a 10-day sentence for the unauthorized possession of a single Xanax pill, federal immigration officials placed Carachuri-Rosendo into automatic deportation. His only prior conviction involved a 20-day sentence for the possession of less than two ounces of marijuana. Despite the fact that Carachuri-Rosendo had never been convicted of a felony or of any federal crime, the federal government attempted to characterize his second 10-day state prison sentence as an “aggravated felony”—a determination that authorized automatic deportation.

The possibility that such a minor offense could result in a harshly disproportionate punishment like deportation is not the most frightening aspect of this case. More troubling is the government’s stance that “conduct punishable as a felony” should be treated the same as an actual felony conviction. This “hypothetical federal felony approach,” as the Court called it, would have allowed misdemeanors, state convictions, and other minor offenses to be treated as federal felonies for the purposes of immigration law. Such an outrageous denial of due process is something we would not tolerate in any other area of law.

The Court unanimously rejected this hypothetical felony approach in clarifying the definition of “aggravated felony.” As Justice Stevens wrote for the unanimous Court, “We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an ‘aggravated felony.’”

Unfortunately, the problem of punishing immigrants based on hypothetical offenses is still possible under other INA provisions not immediately addressed by this ruling. Immigration and Customs Enforcement (ICE), for example, has relied on the same hypothetical approach in pursuing “criminal aliens” eligible for detention and deportation. Under the INA, the term “criminal alien” includes any legal or illegal immigrant who has committed a “crime of moral turpitude” or any crime “for which a sentence of one year or longer may be imposed.”

Several ICE initiatives, such as 287(g), the Criminal Alien Program (CAP), and Secure Communities, have targeted criminal aliens by building partnerships between ICE and local law enforcement agencies. Through these initiatives, ICE receives information about immigrants who are booked by local police or held in state and local correctional facilities. These initiatives purport to target dangerous “criminal aliens” before they can be rereleased into the American public. However, there is growing evidence that ICE is using these programs to detain and deport far more than just dangerous criminal aliens.

Language in the INA authorizes ICE deportation of anyone "convicted of a crime for which a sentence of one year or longer may be imposed.” Using essentially the same hypothetical approach that the Court invalidated in Carachuri-Rosendo, ICE is treating misdemeanors as felonies for the purposes of immigration law. The actual sentence a defendant receives is not important so long as a longer sentence could have been imposed. A petty offender sentenced to 10 days for possessing an unauthorized prescription drug can still be pulled into immigration detention or deportation, merely because a larger sentence was available.

ICE has taken its authority to deport criminal aliens and used it to gather information about all immigrants passing through state and local police custody. Studies of ICE enforcement under 287(g), CAP, and Secure Communities indicate that even immigrants who are acquitted or whose charges are ultimately dropped are often targeted for detention or deportation. A study of CAP by the Warren Institute at UC Berkeley Law School found that in Irving, Texas that 98% of ICE detainers were issued against individuals charged with misdemeanor offenses.

These initiatives are meant to remove dangerous criminal aliens, not petty offenders or any immigrant who has contact with a police office. As former NYC District Attorney Robert Morgenthau noted in a recent article for the Wall Street Journal, current ICE practices make immigrants less willing to report crimes and risk destroying trust between the police and immigrant communities.

The Carachuri-Rosendo decision should encourage ICE and DHS to rethink the way they go about apprehending criminal aliens. Enforcing federal immigration laws, particularly against violent criminals, is important to the continued security of the country. But we should not be sacrificing our commitment to the rule of law in order to achieve that objective. It diminishes our nation to treat non-felons as felons and to punish non-criminals as criminals simply because the people involved were born outside the United States.