10/03/2011 07:04 pm ET Updated Dec 03, 2011

Give Criminal Aliens a Second Chance

With great fanfare last week, Immigration and Customs Enforcement officials announced the arrest of some 3,000 convicted "criminal aliens" during a its seven-day national "Operation Cross-Check" enforcement operations. The attention-grabbing announcement emphasized that more than 1,600 had felony and highlighted seven of the arrestees who had been convictions for kidnapping, attempted murder, armed assault, or child molestation. That's juicy information for law-and-order enthusiasts and the anti-immigration establishment.

The problem with these types of ICE actions and announcements is that they blur the picture of who makes up the so-called "criminal aliens." Immigrants who commit crimes and are subject to deportation come from all over the world: Mexico, Asia, Canada, Europe, Africa, and the Middle East. The U.S. Supreme Court has even endorsed the deportation of a Somalian refugee, convicted of assault, back to Somalia, where no formal government exists. In 2002, the United States began deporting Cambodian refugees convicted of crimes back to communist-dominated Cambodia. So while ICE may indeed be rounding up and removing hundreds of so-called "illegal immigrants" who have committed crimes, the agency is also engaged in deporting lawful permanent resident aliens (those with "green cards") and refugees convicted of crimes. And these deportees have served their sentences in the criminal justice system before being deported.

As a legal services attorney in San Francisco in the 1970s, I represented a number of clients who were being deported because of crimes they had committed. "John," who immigrated as a kid from Hong Kong, had become a gang member. "Linda" was a woman from Canada who came with her parents as a toddler and later became a prostitute. After both were released from prison, I was able to help them convince an immigration judge that they were rehabilitated and on the road to a crime-free life. They were given a second chance, and to this day, both have led stable, productive lives.

Things have changed. After reforms in 1996, the law does not afford those in John's and Linda's shoes a second chance. In the process, many non-citizens of countless other nationalities are removed from the United States where they have spent their formative years. Most of the convicted lawful residents and refugees have one thing in common under U.S. immigration laws: they are regarded as aggravated felons. Virtually no relief from deportation is available to aggravated felons. Issues of rehabilitation, remorse, family support in the United States, and employment opportunities are irrelevant to an immigration judge's determination of their deportability.

Ridding the country of criminal elements attributable to foreign sources sounds like an admirable goal, but there are several arguments against using deportation as the means to achieving this goal. The first is the impact that deportation has on family members who remain and employers. Second, many deportable foreign nationals have resided in the United States since infancy. Third, deportation implies a failure on the part of the criminal justice system to rehabilitate incarcerated persons, forcing them to serve sentences imposed by U.S. courts and leave the country immediately afterwards in order to protect the public. Rethinking removal and developing reasonable alternatives is a challenge that requires our immediate attention. Our current deportation policy destroys the lives of those who fall prey to it, and it destroys U.S. families and communities in the process. Nothing is gained, and ultimately, we all lose. We need to be restoring pre-1996 discretion to immigration judges to enable them to make a fair assessment of whether an immigrant deserves a second chance. Short of that, ICE needs to exercise its discretion to grant a probation-type period to individuals to observe their behavior.

The world of corporate fraud prosecutions also suggests an interesting tool that could be useful in developing alternatives to deportation for criminal aliens. In response to the extent of corporate scandals, federal prosecutors have adopted strategies to manage the complexity of prosecutions and to foster better behavior on the part of corporations. For example, by using prosecution guidelines, prosecutors can elect to defer prosecution in cases where the corporation cooperates with investigatory agents and takes remedial actions to remedy its illegal behaviors. This culminates in a deferred prosecution agreement (DPA) between the government and the corporation, which is essentially a form of probation, or "pretrial diversion," where the government suspends charges against the company if all the details of the agreement are fulfilled.

Prosecutors agree not to pursue the charges and to dismiss them with prejudice after a period of time (generally between one and two years) if the corporation honors all of the terms of the agreement. In return, corporations undertake reforms, pledge active and complete cooperation with the ongoing investigation, and pay substantial civil penalties and victim restitution. Companies will often be required to engage the services of a monitor or examiner during the diversion period to review and report on compliance efforts.

DPAs provide tremendous rehabilitative incentives to the corporations that are party to them. This innovation in the world of corporate scandal where billions of dollars may be involved and the lives of officers, board members, employees, and shareholders are at stake is adaptable to the criminal immigrant deportation setting. Why not monitor and impose conditions on such individuals for a reasonable period of time to see if rehabilitation is possible? Why not provide government attorneys or immigration judges with the authority to implement such conditions?

The experiment that we call America is a test of our character and our willingness to believe that we can have a strong country that is caring and diverse. Showing compassion and fairness in our immigration policies is not a sign of weakness. Rather, those traits demonstrate a confidence in a rule of law and system of government that metes out punishment when necessary, but understands that regulating the lives of those who seek to live within our borders must be done with the utmost compassion, dignity, and understanding. As in previous generations, there is much to admire about individuals who come to our shores seeking freedom and a better life. Whether they are fleeing persecution or entering to seek work in order to better their lives, the newcomers of today are not much different from those of the past. Once here, welcoming newcomers and understanding the challenges that they will be facing are imperative. As they become part of our neighborhoods and communities, some may make mistakes, but we do well to remember that supporting rehabilitation, giving a second chance, and providing ways for individuals to mature are essential elements of a civil society. While these traits of a civil society benefit individuals, they benefit us all as a common community. Although traits of forgiveness may immediately benefit the individual, in the end, we all benefit. When an individual finally turns the corner and becomes a contributing member, the entire community benefits -- socially, emotionally, and economically.