Bending the Law to Avoid Deporting Criminals

July 26, 2019

By Lew Jan Olowski

Federal law mandates deportation of aliens who are convicted of “aggravated felonies”—defined to include certain state misdemeanors carrying a sentence of a year or longer—whether or not they are in the country legally. But some judges, prosecutors and legislators are playing games to get around this law.

Consider the case of Joseph Lloyd Thompson. A legal resident alien from Jamaica, Mr. Thompson was convicted in 2012 of “family violence battery” and sentenced to 12 months confinement. In 2017 the Department of Homeland Security began removal proceedings. Mr. Thompson asked a state judge to modify his criminal record after the fact.

The judge obliged, reducing Mr. Thompson’s already-served criminal sentence on paper. In March 2019, the Justice Department’s Executive Office of Immigration Review ordered the immigration court to reconsider its deportation order. Attorney General William Barr is now reviewing the case.

This pattern is repeated nationwide: Lawyers ask judges to alter their clients’ criminal records and spare them from deportation. Convictions and sentences are then “vacated,” “expunged,” “modified” or altered using other jargon. As in Mr. Thompson’s case, this can happen years after the fact during deportation proceedings. All this is barred by the Immigration and Nationality Act. Deference to judges’ alterations of criminal records is a judicially invented loophole.

Prosecutors in some cities, including New York and Chicago, have special programs to help criminal aliens avoid deportation by offering them leniency. It’s the sole duty of one lawyer on Philadelphia District Attorney Larry Krasner’s staff. When Jose Ramirez-Diaz committed felony assault with a beer bottle, Mr. Krasner’s office entered into a plea bargain in which the defendant was sentenced to 11 months in jail, below the deportation threshold.

The victim, an illegal alien, cooperated with authorities under a special visa program for crime victims—yet he was deported before the visa came through and is now on a wait list for lawful admission and residency. Mr. Krasner’s office has recommended leniency in at least 120 cases to spare the defendants from deportation—including thieves, drug dealers, and domestic abusers.

Some state legislatures are also working to undermine federal immigration law. At least seven states—California, Colorado, Nevada, New York, Oregon, Utah and Washington—have enacted “364-day laws” limiting sentences for certain state misdemeanors—including both violent and property crimes—to one day short of a year, to prevent them from being classified as aggravated felonies for immigration purposes.

Congress should abolish the 365-day threshold. The law already classifies certain offenses—among them trafficking in drugs, weapons or sex—as aggravated felonies regardless of sentence. It should do the same with theft and all violent crimes.

Lew J. Olowski is staff counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration.

Also published at: Lew J. Olowski, Bending the Law to Avoid Deporting Criminals, The Wall Street Journal, July 26, 2019.