Back to the Future? Returning Discretion to Crime-Based Removal Decisions: A Reponse to Jason Cade

Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by revered federal district court judge Jack Weinstein. In United States v. Aguilar, Judge Weinstein issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children.

One might dismiss Judge Weinstein’s recommendation as dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the modern U.S. immigration laws. He advocates the return of discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.  My response critically analyzes Cade’s proposal.  It agrees with the need for the return of discretion to crime-based removal decisions, especially given the disparate racial impacts of the criminal justice system that in effect creates a Latina/o pipeline for removals.  However, the response questions whether the courts and the Executive Branch are the proper institutions for restoring discretion to removal decisions.  Congress would seem to be the constitutionally appropriate institution for brining about such change.