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Proportionality has no basis in our immigration laws. Â Our immigration judges don’t have the discretion to weigh whether removal is a disproportionate punishment for a crime before ordering removal. Â It doesn’t matte if you were convicted for driving without a license and senteneced to one day in jail after 15 years in the U.S., being gainfully employed, and an otherwise pillar of your community. Â Proportionality is simply not a consideration. Â You either qualify for something or you don’t. Â Period.
States can play a role. Â For example, Gov. David A. Paterson created an immigration pardon panel before his term ended. Â This was a state effort to speed the granting of pardons to immigrants facing deportation for old or minor criminal convictions. Â Applicants were limited to legal permanent residents — green card holders – “who contributed as New Yorkers and who deserve relief from deportation or indefinite detention.” Â The crimes under review ranged from misdemeanors to felonies, from turnstie jumping to murder. Â Some were committed decades ago. Â Most of the pettioners were facing deportations for their conviction, and only a governor’s pardon could prevent it, although in some cases, for example, gun and drug crimes, even a pardon could result in deportation. Â That is the nature of our immigration laws.
It doesn’t have to be this way. Â Sure Congress can pass immigration reform, which could completely fix this issue. Â Even less ambitous, Congress can draft legisation giving immigration judges discretion to consider proportionality to avoid handing out grosly unfair removal orders. Â Until Congress starts fixing the problems it caused, ICE can and should exercise prosecutorial discretion more thoughtfully.
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