Stop Deporting Immigrants for Minor Offenses

Daniel Kanstroom, a law professor and co-director of the Center for Human Rights and International Justice at Boston College, is the founder of the Boston College Law School Immigration and Asylum clinic and the Post-Deportation Human Rights Project.

Updated September 12, 2016, 3:21 AM

Last week, President Obama commuted the prison sentences of 111 federal inmates who had been convicted of nonviolent drug offenses, bringing the administration’s total number of commutations to more than the previous 10 presidents combined. More than a third were serving life sentences, many for nonviolent drug offenses.

Meanwhile, tens of thousands of former long-term legal residents — “green card” holders — with U.S. citizen spouses, children and parents endure what are essentially lifetime sentences of banishment from the only country they have ever known. How about a commutation program for the wrongly and the unfairly deported?

It's not just the undocumented. Tens of thousands of legal residents have been deported as 'aggravated felons' for state misdemeanors like shoplifting or for minor drug offenses.

In the 1990s, harsh new laws mandated deportation and lifetime banishment for any long-term legal immigrant for a vast array of crimes — including minor drug offenses — without the possibility of judges’ mercy or discretion. Since then, we have experienced a deportation frenzy, though most U.S. citizens remain deeply unaware of its terrible toll: In addition to millions of undocumented deportees, tens of thousands of legal residents have been deported as “aggravated felons” for state misdemeanors like shoplifting or for minor drug offenses. Equally tragic, many have been wrongly deported because of mistakes in their records or lack of competent counsel, or pursuant to interpretations of law that were in some cases later rejected by the Supreme Court.

As things stand now, most are banished for life, unable to return here permanently or to visit their families. Though Congress surely never intended it, we have created what amounts to a diaspora population around the world from Jamaica to Cambodia and dozens of countries in between. Some are uprooted Americans who came here as young children, speak only English, know only American culture, have only U.S. families and now face the most difficult futures imaginable.

Deportations for minor crimes would be human rights violations in most of Europe and the western hemisphere. Our “nation of immigrants” has applied a uniquely harsh, unforgiving system of double punishment to legal residents: Virtually all such offenders complete criminal sentences before their deportations.

Main and federal reforms must, of course, come from Congress, which should at least seriously consider a statute of limitations for deportation, the restoration of discretion to judges and a right to counsel for deportees who cannot afford lawyers. In the meantime, though, the President Obama's condemnation of certain prison sentences should apply to the forgotten deported: Their banishment is “an excessive punishment” that doesn’t fit their crimes.

Though it involves some legal complexity, a program that would allow some deported immigrants to “transition back to their communities” in the U.S. could be developed and implemented by the State Department and the Department of Homeland Security without federal or Congressional action.

And it would be — as the president says of commutation for nonviolent offenses of other kinds — simply “the right thing to do.”