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A finding of ‘probation before judgment’ should never lead to deportation | COMMENTARY

“May God forgive you, because I cannot.”

These words were written to me in a letter while I was a United States immigration judge at the Baltimore Immigration Court, where I presided for 31 years. The letter was written by the wife of a man I had ordered deported. In so doing, I had permanently separated a father and husband from his wife and children. These words will stay with me for the rest of my life.

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Michelle Jones’ husband, Daryl, was charged with a minor offense in Maryland. Like many first-time offenders and individuals charged with minor violations, he was given probation before judgment (PBJ). This meant that Daryl, a lawful permanent resident of the United States was not convicted under Maryland state law. For United States citizens, a Maryland PBJ poses no further consequences unless they violate the terms of their probation. But for non-citizens like Daryl, the legal consequences can be far more dire.

Although a PBJ is not considered a conviction under state law, it is considered a conviction under federal law and therefore triggers immigration consequences, such as detention and deportation. I have witnessed countless non-citizens be ordered deported as a result of a PBJ and the devastation to their families that follows. I myself have ordered the deportation of hundreds of Maryland residents like Daryl because of a PBJ. It didn’t matter that these individuals had been deemed worthy of a second chance and not convicted under Maryland law. Their PBJs condemned them to the gravest punishment — deportation under federal immigration law — leaving me with no judicial discretion. My hands were tied by the law.

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The Maryland General Assembly has the opportunity, and the responsibility, to correct this unjust system by amending the PBJ statute. That is why I am asking the Maryland General Assembly to pass legislation (House Bill 354/Senate Bill 527) that would make probation before judgment accessible to all Maryland residents, regardless of citizenship status. The amendment would merely change the process by which a PBJ is entered; the impact of a PBJ would remain unchanged.

This bill ensures that the consequences of PBJs are the same for citizens and non-citizens alike, narrowing the disparities in our criminal justice and immigration systems, which disproportionately affect people of color. And for someone like Daryl, it would have been the difference between deportation and staying in the country to be with his family and watch his kids grow up.

Virginia and New York have similar statutes, which function so that their non-citizen residents do not suffer additional consequences from probation. To allow this inequity to exist from one jurisdiction to another, when the intent of PBJ statutes is the same or similar, is in my opinion unjust. Which side of the Potomac River the case is heard on should not determine whether a PBJ triggers federal consequences.

While the arrival of a new administration in Washington brings hope of immigration reform, the federal immigration statute at issue here is very unlikely to be changed. Such an alteration would require an act of Congress, which is extremely improbable given that the last major change to the federal immigration laws occurred 25 years ago. It is up to the Maryland General Assembly to take action.

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People like Daryl, who was deemed worthy of PBJ, should not be condemned to deportation under federal law. Daryl’s wife, Michelle, told me in her letter that I had ruined her life and the lives of her children. She wrote that I was in a position of great power and authority and that I could have given him a second chance. I regret that I was not able to do so.

In addition to serving as a United States Immigration Judge, I was an adjunct professor of law for twenty years. I always told my students, “Do Justice.” Amending the Maryland PBJ statute is the just thing to do.

John F. Gossart Jr. (judge800@yahoo.com) retired as a United States Immigration Judge.

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