Mathis, Descamps, and the End of Crime-Based Deportation (Kari Hong, U.C. Davis Law Review, forthcoming (2017)).

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 those with criminal convictions, or at least those who committed violent crimes.
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 be eliminating numerous offenses from having ACCA and IIRIRA consequences on a case-by-case, statute-by-statute basis.
As a normative matter, I contend that this result is the proper one. Prosecutors, judges, and policy makers are embracing this reality in the ACCA context, in part because the federal court can tailor the sentence to the type of conduct underlying the offense without regard to prior crimes. The same result should be embraced in the immigration context. IIRIRA’s reliance on crimes to serve as immigration grounds is too arbitrary, too unjust, and simply out of proportion to how the criminal courts considered the seriousness (or lack thereof) of the crime. For example, a man who had been in the United States with a green card for 40 years was deported over stealing a $2 can of beer. Although a federal court reversed the deportation, the case illustrates that figuring out who is dangerous and who isn’t based on a criminal record is not an efficient or effective method of immigration enforcement.