This article was last updated on May 25, 2022
A senior federal judge in the Eastern District of New York (which encompasses New York City) has laid out the basis by which "judicial recommendations against deportation" (JRADs) will be issued. He did so via an opinion and order in a criminal case for which he was presiding judge.
Everything about the order — its context, the crime, the defendant, even its content — is strange, not to say skewed. It's the judicial equivalent of staring at an M.C. Escher print and trying to figure out of which side is up.
First, let's note that JRADs no longer exist in the law — Congress repealed that provision of the Immigration and Nationality Act 25 years ago (see Section 505 of the Immigration Act of 1990). Before repeal, a JRAD was binding on immigration authorities, including immigration judges, although it could not be used for certain offenses or where the sentence exceeded a year of imprisonment.
Next let's note that JRADs were primarily used in cases involving resident aliens in which mitigating factors existed; the JRAD acted to bar deportation and thus left the alien's legal ability to remain in the United States intact. The defendant in this case is an illegal alien. Given that the statutory basis for JRADs no longer exists, and that the defendant is otherwise deportable for lack of status, it can (or at least should) have no legal basis for preventing removal.
Third, let us observe that the crime for which the defendant was convicted — trafficking in fraudulent passports under 18 U.S.C. Section 1543 — is a particularly serious offense (and ironic, given the subject's own illegal status). The judge tells us that the government recorded eight separate instances of the subject engaging in the offense, although at another point in the opinion, the judge suggests that the defendant's crimes were "arguably induced by [an] informant". If so, this would be entrapment. If the judge suspected entrapment, one wonders why he didn't explore it further by holding hearings to get to the bottom of the matter. After all, it would have been a basis to dismiss the charge entirely, and to raise so serious a question in such a by-the-way fashion is dismaying.
Why, then, did the judge choose to issue what is, legally, a non-binding judicial recommendation against deportation for an illegal alien who would be removable even without the conviction simply by virture of his lack of status? He tells us that it is because the defendant's children are U.S. citizens, having been born in the United States during his and his wife's illegal sojourn, and he had no wish to cause "dissolution" of the family and trauma to the children if separated. The evidence of trauma the judge cites in his order comes from individuals and groups with a decided bias against deportation.
If ever there were an "Exhibit A" for reversing the present course of assuming birthright citizenship for anyone born in the United States, this case is it. It's not that I have no sympathy for the children; but it is well to remember that they are, in fact, dual citizens: Because both of their parents are Mexican citizens, so are they. Dual citizenship is a notion I don't usually have any patience with, but it is particularly relevant in this instance.
There is no reason to speak of family dissolution when it is clear that the parents have the choice of doing what most caring parents would do: Take their children along and make a life for themselves in their homeland if the husband is removed for his crimes. It is not as if that cannot be done — more than 120 million other Mexicans do it daily. It is elitism in the extreme to presuppose that the only decent or purposeful life to be lived is one in the United States. Roughly 96 percent of the world's peoples live elsewhere.
I find myself pondering how many times a United States citizen has stood before the judge under the federal three-strikes law — say for the third in a series of drug offenses — that is going to require an inordinately long sentence to prison. One wonders if the judge in those cases spent much time thinking about the impending lengthy separation of those man from their children, and the trauma inflicted on the family. Or does he square his shoulders and say that there is often a heavy a price to be paid for criminal misconduct, and sometimes part of the price is paid by innocent family members of the offender?
It seems to me that the judge has almost certainly exercised a double standard here and bent over backward for an illegal alien criminal in ways he probably doesn't ever consider for native-born citizen criminals who stand before the bar in his court.
He has also carried judicial activism to an extreme — something akin to a judicial branch equivalent of the administration's "executive actions" on immigration. He is attempting to forge a path via a judicial recommendation against deportation where one no longer legislatively exists. And if this is the kind of misuse that JRADs were subjected to in the past, it is no surprise that Congress amended them out of the law.
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