The Absurdity of Crime-Based Deportation

2067 The Absurdity of Crime-Based Deportation Kari Hong ∗ The belief that immigrants are crossing the border, in the stealth of night, with nefarious desires to bring violence, crime, and drugs to the United States has long been part of the public imagination. Studies and statistics overwhelmingly establish the falsehood of this rhetoric. The facts are that non-citizens commit fewer crimes and reoffend less often than citizens. But facts do not stop the myth. Even supporters of immigration reform often will point out that they will help deserving immigrants but will deport the undeserving ones, particularly those with criminal convictions, and especially those who committed violent crimes. Despite the new administration’s call to deport up to three million criminals, my Article counters that there will be — and should be — an end to crime-based deportation. It is already happening quickly and quietly in federal courts. Beginning in 2013, the Supreme Court decided United States v. Descamps, and in 2016, Mathis v. United States. These cases are highly technical decisions relating to the federal Armed Career Criminal Act (“ACCA”) and immigration law’s Illegal Immigration and Immigrant Responsibility Act (“IIRIRA”). This Article draws upon empirical data to show that, as predicted by the Justices, a faithful adherence to Descamps and Mathis will eliminate numerous offenses from having ACCA and IIRIRA consequences on a case- by-case, statute-by-statute basis. ∗ Copyright © 2017 Kari Hong. Assistant Professor, Boston College Law School. The ideas in this article were first presented at the Criminal Justice Reform Conference at Concordia University School of Law. This Article greatly benefitted from the comments and feedback from Maria Andrade, Angela Banks, Mary Bilder, Ming Hsu Chen, Gabriel “Jack” Chin, Ingrid Eagly, Mary Holper, Eisha Jain, Dan Kanstroom, Kevin Johnson, Andrew Chongseh Kim, Jennifer Koh, Stephen Legomsky, Leah Litman, Gerald Neuman, Natalya Shnitser, Juliet Stumpf. Karen Breda provided incredible help in locating resources and materials. I wish to thank Saba Habte and Dustin Dove for their invaluable research assistance. I wish to thank the excellent editorial assistance by Joel Guerra and the UC Davis Law Review.