How to Quickly Increase the Number of Criminal Alien Removals

Many criminal aliens have been convicted of and are serving relatively short-term sentences for petty offenses. They include low-value shoplifting, public drunkenness, resisting an officer w/o violence, petty theft, possessing fraudulent identity documents, misdemeanor burglary, and many other state offenses. Most if not all of these aliens are subject to removal from the United States as persons who have committed and have been convicted of qualifying criminal offenses and/or as aliens who were illegally in the United States.

In most if not all jurisdictions, including Florida, the state governor has the authority to issue clemency and allow for early release of the alien on conditions. Clemency is a recognized authority and is practiced at both the federal and state levels. Many states use that authority.

In the mid-1990s, the Miami District of the former Immigration and Naturalization Service (INS) entered into negotiations with the Florida governor’s office, then drafted and ultimately entered into a memorandum of understanding (MOU) that utilized the governor’s clemency authority to release non-violent criminal alien offenders from custody in exchange for the aliens’ agreement to accept an order of deportation (removal), waive appeal, and agree to be immediately returned to their home country.

The project was a success at both the state and federal levels. Florida opened up bed space for home-grown criminals, while saving significant amounts of taxpayer funds that would have been spent on keeping foreign national criminals in state custody. The federal government, specifically the Department of Justice and INS, immediately enhanced their final order deportation numbers. They did so with very little costs in terms of resources and time since such aliens did not have to undergo full immigration court proceedings, and no efforts would be required to deal with the delay in the ability to remove aliens on the basis of a right of appeal. Beyond that, the custody required to execute the removal of such aliens was nominal in relation to having to house the alien in immigration custody while their hearings were held and/or while their appeals were decided — processes that even back then took months to finalize.

The aliens did get out of criminal custody early. But by taking the deportation order and by INS effecting it, they became subject to federal criminal prosecution for illegal re-entry. They also automatically became subject to a 10-year inadmissibility bar (INA §§ 212(a)(9)(A)).

Most if not every state governor should have similar authority. All that is needed is a precise MOU and a procedural plan for effectuating the removals. Both of these tasks can be replicated simply by using the INS Miami/State of Florida agreement and process. Jurisdictions that support immigration enforcement might be eager to participate. Jurisdictions not supportive of immigration enforcement might also, albeit grudgingly, participate once the concept is advertised to its taxpayer base.

This process is a quick way of increasing the number of criminal alien removals.