Judicial Amnesty Benefits Criminals and Undermines The Constitution

July 31, 2019

By Lew Jan Olowski

Federal law requires the deportation of noncitizens convicted of aggravated felonies in the United States. But some judges have invented a practice of “judicial amnesty” to prevent this law from being enforced, and to keep such criminals in America.

Right now, the attorney general is reviewing Matter of Thomas and Thompson. In this case, a noncitizen was convicted of a domestic-violence crime and given a one-year sentence. Such a convict is deportable under the “aggravated felony” provision of the Immigration and Nationality Act. But during his federal deportation proceedings, this convict asked a state-court judge to modify his criminal record. So the judge reduced the convict’s sentence on paper to less than one year, even though the sentence was already served. The Board of Immigration Appeals accommodated the judge and declined to deport the criminal.

Across the country, lawyers for convicted criminal aliens are asking judges to change their clients’ criminal records. Judges exploit all manner of legal jargon to help these criminals remain in the United States: Their convictions and sentences are clarified, modified, expunged, vacated, nullified, or otherwise judicially altered to thwart federal law.

Judicial amnesty does nothing to help the law-abiding non-citizens who arguably deserve to remain in this country; by definition, it only helps convicted criminals. No credible voice in the immigration debate argues that America should welcome such individuals.

Worse, judicial amnesty privileges non-citizens over citizens. Citizens convicted of crimes may have a finite window of time and a limited set of circumstances under which they may seek changes to their criminal records. Non-citizens, however, now have one more means to that end: using the fear of deportation as a basis for obtaining a cleaned-up criminal record.

Moreover, Congress does not allow judicial amnesty under the Immigration and Nationality Act. Judicial amnesty is an experiment that has already been tried — and failed. Decades ago, Congress allowed judges to order “Judicial Recommendation Against Deportation” within 30 days of imposing a sentence upon a noncitizen criminal. But Congress abolished this practice with the Immigration Act of 1990. Nowadays, no provision of immigration law allows judges to spare convicted criminals from the immigration consequences of their behavior. But judges do it anyway.

Since judges have no authority under federal law to execute this power, the tactic depends on federal immigration authorities’ voluntarily deferring to the judicially altered criminal record instead of the original record. To stop this practice, the attorney general should decide that immigration courts must ignore judicial alterations of noncitizens’ criminal convictions and sentences. Not only is this necessary for the faithful implementation of the Immigration and Nationality Act, but it also restores separation of powers under the Constitution. The Supreme Court of the United States has held that “the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”

Judicial amnesty exemplifies the problem of judicial activism in general: Officials with no demonstrated competence in policy judgment and no political constituency or accountability are making decisions that should instead be left to voters and the political process. Judges tempted to alter deportable aliens’ criminal records should heed Congress and the Constitution — not convicted criminals and their lawyers.

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, Judicial Amnesty Benefits Criminals and Undermines The Constitution, National Review, July 31, 2019.