Deportation, Recidivists and Rehabilitation

The rhetoric of criminality against non-citizens, especially in the context of immigration enforcement has long historical roots.1 description of a group as “criminals” is a common tactic to justify harsh, even shocking treatment, so it should be no surprise that such accusations were used in separating children from migrant parents. And while the use of the criminal label can refer to the federal misdemeanor of crossing of a border without documentation, many commentators and the President himself- has referred to something different: non-citizens committing crimes unrelated to immigration.2 Immigration and Customs Enforcement highlights the number of people deported who have committed crimes.3 Harsh treatment of criminals has nearly always made political sense, but (at least in theory) this was offset by strong procedural protections given to criminal defendants, such as appointed counsel, and the beyond a reasonable doubt standard of proof. Exiling non-citizens who commit crimes may seem like a natural outgrowth of criminal punishment, but it is a Faustian bargain that ultimately corrodes the criminal justice system.

Despite the Supreme Court’s pronouncement that deportation was civil and not criminal,4 an observer could be forgiven for assuming the entire process is criminal. ICE agents regularly wear clothing and labels identifying themselves as “police”, the federal regulations refer to agents “arrest authority”, the agency regularly refers to detainers as “warrants”, and most immigration detainees are held in county jails with criminal defendants. This overlap has contributed to the development of a new area of law, namely “crimmigration” a term used by Juliet Stumpf in her seminal law review article, “The Crimmigration Crisis Immigrants, Crime and Sovereign Power” 56 Am. U.L. Rev. 367 (2006).5 As criminal mechanisms for detection and punishment promulgated in the removal system with alarming speed, many scholars pointed out that the immigration system’s lack of criminal adjudicative norms and procedural protections meant that the “civil” label was being used as a sword. Instead of “civil” meaning fairer or less consequential treatment, it often meant a harsher and even in some cases more deadly one.6

Deporting criminals either as a form of punishment, or as a sorting mechanism to determine who is unworthy of staying in the United States enjoys broad, bi-partisan and public support. I argue that it should not. Deportation of non-citizens especially under the current system ignores state criminal justice interests in favor of federal “uniformity.” The case against criminal based deportation is a much larger and broader topic than is appropriate for a blog post, and has been covered from a variety of perspectives, however I wanted to focus on one feature of the deportation of those who commit crimes: how the practice undermines the ability to promote rehabilitation in the criminal justice system. 

A (very) brief summary of the different “purposes” or justifications of the criminal justice system is in order. There are two schools of thought on why the government has the power to imprison and punish people for crimes. For one school, the retributivists, the criminal justice system’s main function is to mete out punishment in a fashion that expresses condemnation and reflects moral standards of acceptable behavior, in other words to distribute “just desserts.” For utilitarians, the criminal justice system should serve more tangible concrete goals such as prevention of harm and rehabilitating those who have transgressed. I have argued elsewhere that as a “just deserts” tool,7 the modern deportation regime lacks moral credibility. Here, I argue that as a utilitarian tool it not only fails to rehabilitate, but it actively undermines rehabilitation- not just for non-citizens, but for everyone. To demonstrate how, I will be focusing on how the deportation system gives effect to a single word- “conviction.”

Criminal Justice and Deportation

Let’s start with some basics of immigration removal and the criminal justice system. Non-citizens who end up involved with the criminal justice system risk being removed from the United States. However, there are two distinct paths that this can take. The first comes from Congress and hinges on the term “conviction”, Congress has made certain judgments about what criminal activities warrant a non-citizen from being removed from the country, and the law outlines what these crimes are and how they can cause a person to be deported. Congressional judgement through legislation usually applies equally to those with some legal status in the United States and those without.  For instance, a person with a green card who lived in the United States for fifty years can be subject to deportation for a crime committed nearly twenty years ago, if Congress had determined that particular crime worthy of deportation.8  This track for removal has forced courts to try and interpret what crimes in what jurisdictions are eligible for deportation. The law has gotten sufficiently complex that it continues to evolve in the federal judiciary over the past 20 years and has been a regular topic of discussion for the Supreme Court in the past decade. 

The second track for removal from the United States based on criminal activity involves the exercise of prosecutorial discretion. One of the first changes that the Trump administration put into place was an express rejection of the prosecutorial discretion practices that were adopted in the latter half of the Obama Administration.9  When President Obama declared his DACA program10 , he proclaimed that his administration was going to go after “Felons not families.” He outlined how resources for removal would be utilized according to priorities, essentially, the idea was criminals would be deported first.11  These priorities are independent of Congressional judgment and are most on display when dealing with people without any status in the United States. Even if Congress decided that a particular crime would not warrant removal from the United States, the Executive Branch using prosecutorial discretion could make that person a priority for removal.  The Executive Branch still needs another independent basis for removal, but the crime becomes the practical trigger that puts them into the crossfire. Because entering without authorization or overstaying authorization is a basis for removal, the criminal members of the undocumented community are a an increased risk for deportation. One of the best examples of this would be DUIs.  A conviction for driving under the influence does not by itself cause deportation.  A lawful permanent resident can commit and get convicted of a DUI and there would not be any immediate deportation consequences. However, if that same person is undocumented, the DUI fast tracks that person for apprehension, detention and ultimately removal.12

The subject of how prosecutorial decisions in Immigration Enforcement can affect the criminal justice system is itself a rich topic.13  For instance, when the Trump administration decides that mere arrests or accusations of criminal conduct can place a person on higher priority for removal,14  it is evident how this can affect the criminal justice system. If a person is deported after only an arrest, then a criminal prosecution never happens and the defendant is neither punished nor exonerated. Courthouse or probation arrests are another example.  If ICE begins arresting people in court or at probation hearings, then there will be more incentive for those same people to avoid attending court or checking in for probation, or witnesses to avoid testifying and cooperating. Prosecutorial discretion policy is usually the lever that Presidents have in deciding immigration policy in the absence of Congressional legislation. However, this blogpost will focus not on prosecutorial discretionary decisions, but rather on what Congress has put into place- and how Courts (and agencies) have interpreted these definitions, that undermine the criminal justice system.

The Federal Law of Removal

Immigration and specifically the law surrounding the removal of people from the United States is federal. Congress has the authority to set out rules on removal and has largely done so through the passage of legislation, adding to what is known as the Immigration and Nationality Act (INA) which was first passed in 1952 and has been continually amended through other acts of legislation.  At the same time, criminal convictions mostly happen on the state level.  Removal based on criminal activity has been around for a long time in our nation’s history, and the fact that states all define crimes slightly differently has presented various problems. 

How does the federal government take diverse definitions of state crimes and decide if they merit removal from the United States? For instance, Congress may want all burglars to face removal, but because states define burglary differently, a process is needed to decide if a state crime merits removal under a federal definition. An “elements” based approach rather than a “real offense” approach15  has dominated much of the deportation jurisprudence.16  An elements type approach is based on what the Supreme Court has called the “categorical approach” and it essentially works by comparing the “elements” of a state crime to the federal definition of criminal activity that triggers removal.17  The primary textual support for the categorical approach in the statutory language comes from the word “conviction” in most of the criminal activity based deportation grounds.18  The general idea being that when referring to what a person was “convicted of” it should only reflect what the crime’s elements were as all other aspects of the criminal activity were not necessarily found by (or admitted to) a criminal court. Critics, especially those who claim a lack of uniformity, point out that this approach allows people to avoid deportation based purely on the happenstance of what state they happen to a commit a crime. Because everything turns on the “elements” of a crime, then how a state defines a crime’s elements can affect the deportation consequences. A person in California and Idaho may commit the same exact acts and get prosecuted and convicted, but only one may be subject to deportation if the criminal definition in one state is differs on an elements level from the federal definition.

The categorical approach exists not just in immigration law, but has been a mainstay in sentencing law as well, especially with the passage of the Armed Career and Criminal Act (ACCA). As justice Breyer explained in his dissent in Mathis v United States this tension comes about from the debate over a “real offense”, “charged based” or an elements based system of deciding how past criminal activity affects sentencing for a current crime.19  The reliance on elements provides a measure of protection for criminal defendants as they are only held liable to what they necessarily admitted to or a judge/jury must have found for a conviction. The key point is that how a state defines a crime, is what decides whether it can lead to liability under both immigration and sentencing. But what about how a state defines a conviction: does this affect the determination of deportation?

What is a Criminal Conviction?

In the 1940s, States began to experiment with changing the consequences of criminal activities in order to encourage rehabilitation. For instance, in the juvenile context states began to seal past criminal records to help with the idea of “removing the infamy of their social standing.” Quickly thereafter the practice spread to adults with the Model Penal Code of 1962 which encouraged a “clean slate” approach which allowed courts to vacate a conviction, while still maintaining its record to again encourage rehabilitation. Other mechanisms included “deferred adjudications” which allowed for those facing a criminal conviction to do “probation” first and if successful get their criminal conviction removed from the record. This rehabilitation movement occurred from the 1940s through the 1960s and created uncertainty as to the “finality” of criminal convictions- or even the consequences of them. States not only defined crimes differently but also began to redefine the consequences of criminal activity differently. 

Deportation and State Rehabilitation Efforts

As deportation is a federal system it is dependent on federal definitions and Congress in 1996 decided to give a statutory definition of what constitutes a conviction found in 8 USC 1101(a)(48) which reads:

“(A) The term "conviction" means, with respect to an alien, a formal
judgment of guilt of the alien entered by a court or, if adjudication of guilt
has been withheld, where-

1. 1. a judge or jury has found the alien guilty or the alien has entered a
      plea of guilty or nolo contendere or has admitted sufficient facts to warrant a
      finding of guilt, and
   2. the judge has ordered some form of punishment, penalty, or restraint on
      the alien's liberty to be imposed.

(B) Any reference  to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law
regardless of any suspension of the imposition or execution of that imprisonment 
or sentence in whole or in part.”

This definition is relatively recent, coming into being only with the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) and it was only passed into the statutory definition because Congress disagreed with a definition that Board of Immigration Appeals (Executive Agency) came up with after wrestling with the problem over a number of years.  What may not be obvious from the definition itself is the controversy it was meant to address-namely how different states procedures addressed the consequence of criminal convictions. 

Congress previously had not defined convictions explicitly, and in 1955 the United States Supreme Court addressed the issue in a perfunctory manner in a decision called Pino v. Landon, 349 U.S. 901(1955). The decision itself was per curiam and did not offer any guidance when the Court ruled that “we are unable to say that the conviction attained such finality as to support an order of deportation…”  The conviction at issue was from Maryland and was issued under a procedure that allowed a sentence to be “revoked” and to be put “on file.” What followed was a scramble by the administrative agencies. 

The Board of Immigration Appeals, the agency body tasked with interpreting the removal statute issued several decisions following the Supreme Court’s Pino per curiam, and as the Board itself states, “Having reviewed our decisions in this regard, we must acknowledge that the standard which we have applied to the many variations in state procedure my permit anomalous and unfair results in determining which aliens are considered convicted for immigration purposes.” Matter of Ozkok, 19 I. & N. Dec. 546, 550 (BIA 1988). The Board then in attempting to weigh the variety of state laws which by the 1980s had come to nearly every state jurisdiction, and to promote a federal uniformity created this three-part test.

1. a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
2. the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service); and
3. a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding the person's guilt or innocence of the original charge.

Matter of Ozkok, 19 I. & N. Dec. at 551–52. At this point the Agency was already wrestling with state procedures that allowed for “deferred adjudications” a practice that instead of “expunging” a conviction allowed you to prove your rehabilitation on the front of the criminal process and have one avoid a criminal conviction as long as the defendant complied with a court order for a certain amount of time. However, Congress in 1996 explicitly decided that the third prong, the requirement that a guilty adjudication must be able to be entered without any further proceeding, was too narrow and as part of IIRAIRA § 322, explicitly excised that provision in order to “broaden the scope of the definition of conviction” and to hold that “deferred adjudications” are still convictions. H.R. Conf. Rep. 828, 104th Cong., 2d Sess. at 223-24. 

The scope of this change in the statutory definition went beyond including deferred adjudications, and instead opened the door for the Agency to revisit completely the scope of what counts as a conviction. By 2005, Attorney General Ashcroft issued a decision ruling that this change in the definition- by just removing the last requirement found in Ozkok, revisited the rule in the Supreme Court’s Pino decision and found that expunged convictions do in fact count as convictions for immigration purposes. Moreover, in an earlier decision in Matter of Roldan, 22 I&N Dec. 512 (1999), the Board had found that a first offender narcotics conviction under California law still counted as a conviction, and in doing so, made sweeping declarations finding that by Congress explicitly adding deferred adjudications to the list of convictions, was a “clear message from Congress that “the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws. An approach in which we would continue to recognize a state expungement, by whatever name a state chooses to call it, as eliminating a conviction for immigration purposes would be inconsistent with Congress’ focus on the original determination of guilty and on its clear desire to implement a uniform federal approach.” 20  Id at 522.

Essentially, any attempt by state procedures to erase an old conviction- or prevent a conviction from being entered into the first place was not going to be effective as long as there was a finding or admission of guilt and some sort of punishment. This was not limited to expungements or deferred adjudications, but included any sort of post-conviction relief that was based on either immigration consequences or on rehabilitation.21  The Board and the Attorney General stopped short of invalidating all state mechanisms to erase convictions- but narrowed them only to ones that dealt with matters of innocence, constitutional infirmities and procedural defects. Not only was the Board and the Attorney General rejecting state interpretations of their own convictions, but they also declared unequivocally that state’s interest in rehabilitation should not have any effect on deportation decisions.

Federal Recidivist Punishments

During the same period of time, how to deal with recidivists and “career criminals” started to gain prominence and again questions relating to state rehabilitative measures in the face of federal punishment began to crop up.  In 1970 the Comprehensive Drug Abuse Prevention and Control Act of 1970 laid out a specific sentencing enhancement for a “special drug offender”22 , this later morphed into the modern prohibition on felony drug offenders in 18 U.S.C. 841(b) which called for 20 years for those with a prior felony drug conviction and life for those with two or more felony drug convictions.  The Gun Control Act of 1968 not only prevented those with certain criminal convictions to get licenses to manufacture or distribute firearms, but also made it a crime to possess a firearm after a conviction. The Sentencing Guidelines also drafted a universal system for consideration of prior criminal activity for sentencing purposes, with two specific provisions under 4A1.2 (criminal history score) and under 4B1.1 (career offender) and 4B1.2(prior crime of violence). The question that began to plague the deportation system had to be answered in the federal criminal system as well- what to do about state convictions that were erased through state rehabilitative measures. Should such convictions trigger increased punishment or liability?

If a person is convicted of a federal crime, how does their past state convictions play a role in their sentencing? In terms of the sentencing guidelines under criminal history, “diversionary dispositions” count. 4A1.2(f). And when it comes to those convicted of a federal drug crime, several circuit courts have also found that deferred adjudications count for purposes of 18 USC 841(b)(1)(B) drug convictions (“special drug offenders” or recidivist drug offenders) as well.23  In the Sentencing context the text is plain, in the § 841 context the text wasn’t as clear, but the Supreme Court in a decision based on a different (and since amended statute) laid out some reasoning why a state rehabilitative measure should not be given deference under a federal statute.24  While the Board of Appeals considered expungements and deferred or “diversionary” adjudications essentially the same in Ozkok, the Sentencing Commission did not. Under the Sentencing guidelines, expunged convictions are not to be counted as part of criminal history.25  So even though one type of rehabilitative measure (deferred adjudications) still count for criminal history, another type- expungements explicitly do not. Importantly drug offenders with expunged convictions still faced higher penalties under federal law.

Federal Prohibition on Firearms Possession after Conviction

One interesting contrast is the treatment of prohibitions on gun ownership for those with past criminal history. Under the modern ACCA definition for convictions as a predicate offense in terms of possession of a firearm, found in 18 U.S.C 921(a)(20)- Congress explicitly not only found that expunged convictions should not count, but “What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held..” Prior state convictions that either were expunged or placed in a “deferred” adjudication, cannot be the basis to convict a person under federal law for possessing a firearm- and it is the states that get to set out the rules. This change was a reaction by Congress to a Supreme Court decision. 

In 1983, the Supreme Court had to decide whether a deferred adjudication from Iowa was covered as part of the Gun Control Act of 1968.  The Act not only made it a crime to possess a gun after conviction of a crime punishable by imprisonment for a term exceeding a year, but also prevented a person from receiving a license to import, manufacture or transport firearms generally. The chairman and shareholder of a company had received an Iowa deferred adjudication. The Bureau of Alcohol, Tobacco and Firearms later revoked the license and the company sued arguing that the Iowa conviction should not count. At the time, Congress had not defined what could constitute a conviction for purposes of 18 USC 922, and so the Supreme Court ended up deciding the issue. The Supreme Court set out two tenets- first that because the statute was federal it must be decided under federal law for purposes of uniformity,26 and second, that a “plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession, it is itself a conviction. Live a verdict of a jury it is conclusive.” The third part of the ruling dealt with whether or not an expunction would remove consideration of the conviction, and in this matter, the Court relied more on looking for Congressional intent and finding none.

Congress did not agree with this decision, and by 1986 through the Firearms Owners’ Protection Act amended the language of the statute and provided that in 18 USC 921(a)(20) exemptions from the rule, specifically listing expungement and making it clear that the law of the jurisdiction of conviction controls whether or not a disposition qualifies as a conviction at all. In short, Congress allowed state attempts to encourage rehabilitation through deferred adjudications or recognition of rehabilitation to control whether the possession of a firearms should be punished under federal law. 

Criminal Deportation Undermine Rehabilitation

The current system of deportation of non-citizens based on criminal activity, not only fails to further the goal of rehabilitation, but actively undermines it. By expressly deciding to ignore any attempts by the criminal justice system to encourage rehabilitation through changing the stigma of a criminal conviction it makes it much more difficult to foster rehabilitation as an overall goal in a community.

There are many reasons why the ability to remove or prevent the entry of a criminal conviction can be a motivating factor for those who have committed a crime. Criminal convictions can often have direct legal consequences such, employment in certain fields, licensure, eligibility for housing or other safety net programs. More importantly, consequences can extend beyond legal ones and implicate private interactions- such as finding employment, renting an apartment, or even simple social interactions. By allowing people who rehabilitate to avoid ”convictions” and make their records less accessible to the public, criminal justice actors can encourage lawful behavior in the future or recognize that some are generally law-abiding even if they make a mistake. But what happens when deportation- the removal of a person from their home back to their country- can still be triggered no matter what the state criminal system does? As Justice Roberts notes, deportation is one consequence that can trump nearly every other one- even the prospect of a long prison sentence.27  What does it matter if a person is able to expunge their conviction, or avoid a “conviction” if it can still lead to them ending up separated from their family and exiled to an unfamiliar country? The criminal justice system’s ability to foster rehabilitation for non-citizens becomes seriously compromised when deportation ignores such efforts. 

What may be less obvious however is how this refusal to value rehabilitation efforts can affect a state’s ability to foster rehabilitation for the entire community and not just for its non-citizen residents. When the Supreme Court created a Sixth Amendment right to understand the potential removal consequences of criminal activity in Padilla v. Kentucky, it created certain logistical difficulties, chief among them was the sorting requirement. Because United States citizens are always immune from deportation consequences, but non-citizens are subject to the same criminal liability as citizens, the consideration of deportation consequences then mandates that the criminal justice system differentiates treatment of citizens and non-citizens.28  This “sorting” mechanism creates not only disparate treatment towards citizens and non-citizens, but also requires an investment of logistical resources from the criminal justice system.  This investment of resources in an already limited resource system necessarily means that all defendants- citizens or not, are going to have their options reduced.29

Rehabilitative incentives and procedures to avoid convictions are important not just to foster law-abiding behavior, but because they allow the criminal justice system to manage overburdened dockets. There are several means a prosecutor may employ to avoid trial, first could be to offer different sentencing arrangements, second would be to charge cases differently, but a third is to offer alternative dispositions. By having deportation consequences ignore alternative dispositions nearly entirely, this makes it much more difficult for prosecutors to be able to effectively rely on such a tactic. The added pressure of realizing that such procedural mechanisms may not provide the relief from a criminal conviction for a subset of people increases logistical costs that ultimately make it difficult for both prosecutors and judges to control their dockets and defense attorneys to adequately counsel their clients.

It is important to note how and why federal sentencing policy that similarly rejects a state definitions of convictions does not undermine rehabilitative efforts. First and foremost, federal sentencing only comes into play if a person commits a crime after a state conviction. And as judges point out, “Ignoring post-conviction state actions also makes sense in the context of the Controlled Substances Act. One purpose for § 841 is to discourage repeat offenders. If a state provides relief for a prior state drug conviction, after the defendant has committed another, federal, drug crime, “it's unclear why a [federal] statute aimed at punishing recidivism (as § 841(b)(1)(A) is) would afford the defendant” relief in his federal sentence.” United States v. Diaz, 821 F.3d 1051, 1057 (9th Cir. 2016). In other words- if a person commits a federal crime after being given a rehabilitative “do-over” there is reason to suspect that the rehabilitation has not succeeded. This is a debatable proposition, but at least it is consistent with the general notion of rehabilitation. 

The deportation context is more akin to the gun ownership restriction. A prospective gun-owner with a set-aside conviction is given the benefit of the doubt on his ability to lawfully own a gun, while a non-citizen is not and faces the sanction of exile from the United States. Refusing to recognize state rehabilitative measures not only makes it difficult to incentivize rehabilitation for those in the criminal justice system now, but can and does result in the deportation of people who have demonstrated rehabilitation , for instance in the earlier cited article where permanent resident was arrested at home to be placed in detention and face removal, the daughter explains, “Garcia said her father has a conviction for a misdemeanor stemming from a domestic violence dispute with her mother that occurred 18 years ago. Her father completed his sentence for that conviction, which was anger management classes and reporting to probation, she said.” Earlier the daughter talked about how her father owned a home and paid his taxes, what she described was a person who successfully managed to rehabilitate, and yet now faced removal and exile from his home.

The definition of a single word can have devastating consequences for people, but it also reveals a disregard of a state or local jurisdiction to try and protect its communities through rehabilitation rather than just separating people from their communities. In my opinion, criminal based deportations are not justifiable, either as a form of punishment or as measure to protect the US communities, but at the very least it should not conflict with one of the most important goals of criminal justice- rehabilitation.

• 1See Vasquez, Yolanda, “Constructing Crimmingration: Latino Subordination in a ‘Post-Racial’ World” Ohio State Law Journal, vol. 76, no. 3 (2015), 599-657(for a historical description of the use of criminality to justify deportation policies).
• 2The President has dubbed the families of crime victims committed by undocumented migrants as “Angel families” https://www.nytimes.com/2018/07/04/us/politics/trump-angel-families-bond-backlash.html
• 3https://www.ice.gov/removal-statistics/2017
• 4Fong Yue Ting, 149 U.S. 698, 730 (1893), scholars have argued against this label for some time, for instance, see Navasky, Victor S. “Deportation as Punishment” University of Kansas City L.Rev Vol. 24 no. 4 (1959).
• 5It is important that “crimmigration law” is not limited to looking at the immigration enforcement system’s adoption of criminal norms, but also includes the criminal system’s adoption of immigration norms, the criminal punishment of migration and criminal control of migrants. For a discussion of what constitutes “crimmigration” see Cesar Hernandez Garcia, “Crimmigration” Introduction at.
• 6For one such example, Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469 (2007)
• 7Chan, Linus and Burkart, Kathryn , Unjust Deserts: How the Modern Deportation System Lacks Moral Credibility (March 9, 2018). Ohio State Journal of Criminal Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3138988
• 8https://www.mercurynews.com/2018/06/13/california-woman-in-shock-after-ice-agents-detain-father-a-legal-resident-outside-home/
• 9https://www.federalregister.gov/documents/2017/01/30/2017-02102/enhancing-public-safety-in-the-interior-of-the-united-states
• 10https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf
• 11https://obamawhitehouse.archives.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration
• 12IT can also make the person ineligible for discretionary forms of relief, such as DACA. 
• 13For an excellent read on the topic check out Professor Shoba Sivaprasad Wadhia’s book, “Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases”.
• 14https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf
• 15The dichotomy of “real offense” versus “elements” approach showed up first in criminal sentencing literature.
• 16Alina Das, “The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law” 86 NYU L. Rev. 1669 (2011).
• 17A quick youtube intro by Professor Maureen Sweeney outlines the use in deportation law, note however that this video https://www.youtube.com/watch?v=eDA-wVIedT0 was made prior to some important decisions by the SCOTUS that affect the categorical approach though the basis outline from the video remains the same.
• 18See Generally, INA 237(a)(2).
• 19Mathis v. United States, 579 U.S. ___(2016)(Breyer dissenting).
• 20The Ninth Circuit would later overrule Roldan as it applied to First Offender narcotics conviction under California law, but the Board made clear that outside of the Ninth Circuit its finding would still be valid. Matter of Salazar, 23 I&N Dec. 223(BIA 2002). 
• 21Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).
• 2284 Stat. 1236 (e).
• 23U.S. v. Cisneros, 112 F.3d 1272 (5th Cir. 1997); U.S. v. Meijas, 47 F.3d 401 (11th Cir. 1995), United States v. McAllister, 29 F.3d 1180, 1184–85 (7th Cir.1994).
• 24Dickerson v. New Banner Inst. Inc., 460 U.S. 103 (1983)(abrogated by statute).
• 254A1.2(j)
• 26Id.at 571.
• 27See Lee v. United States, 582 U.S. ____(2017)(recognizing that avoiding deportation can be the determinative factor in deciding to take a plea deal).
• 28For a great discussion on how different criminal justice jurisdictions try and deal with this mandate, Ingrid Eagly’s “Criminal Justice for Noncitizens: An analysis of variation in Local enforcement” 88 NYU Law Rev. 1126 (2013). 
• 29While not dealt with in this blog post, there is also an argument that rehabilitative or deferred adjudications provide an important means for the innocent to avoid punishment without having to undergo the resource and time intensive process of a trial. This can be seen for instance in the case of Kalif Browder, a young man who insisted he was innocent and was forced to stay in jail for three years, his case was affected because a prior run-in with the law he had used a state’s “youthful offender” status to avoid a conviction (for which he insisted he was innocent), tragically he had no such opportunity available a second time which meant he was forced to stay in jail for a trial to prove his innocence and avoid a criminal conviction. https://www.newyorker.com/magazine/2014/10/06/before-the-law