AMERICANDIVIDENDFUND EST·MMXXVI American Dividend Fund Est. July 4, 2026 · A nonpartisan policy laboratory

Proposal № 101 of 250  ·  Released October 12, 2026

The Removal Rule

A guest who commits a violent felony in the United States is, under the law, removable. Under the practice, the removal is a second proceeding, years after the sentence, subject to discretion at every step, and sometimes never happens because the home country will not take the person back. Criminologists have known for decades that certainty deters and severity does not. Make the consequence certain: the removal order is entered by the sentencing judge, executed the day the sentence ends, the bar is permanent, and a country that refuses its own citizens loses its visas. No discretion, no exceptions, and no drama.

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The problem

The country has one immigration argument it never finishes, and it is about the guest who commits a serious crime. One side says the person should be removed; the other says the removal system is cruel and arbitrary. Both are right, because the system does not do the first thing well and does the second thing constantly. A non-citizen convicted of a violent felony serves the sentence, and then, in most cases, a separate removal proceeding begins: a detainer, a transfer to immigration custody, a hearing before a judge who works for the Attorney General, a possible application for relief, an appeal, and, if the order is finally entered, an attempt to return the person to a country that may decline to issue the travel document. The process takes years. It depends on the priorities of the administration in office, the judgment of the officer who filed the detainer, and the cooperation of a foreign consulate. Some people with serious convictions are removed within weeks; others are released under the six-month limit of Zadvydas because nobody will take them; others are never referred at all.

The consequence is that the removal is not a rule. It is a lottery run after the sentence, and a lottery deters nobody. The finding this catalog relied on in № 056 applies: people are deterred by the certainty of a consequence, not by its severity. A guest weighing a crime against the risk of losing the right to be in the United States faces, today, a risk that is real, uncertain and slow. Meanwhile the discretion that makes it uncertain is the same discretion that makes it arbitrary: a long-resident guest with a decades-old conviction is removed on a whim while a recent arrival with a fresh one is released for want of a travel document.

№ 003 opened the door wider than any proposal in this catalog and drew the line between member and guest harder. № 007 said firmness in the rule permits humanity in the method. This proposal is the firmness: one rule, applied every time, with no one's discretion in it.

The proposal

The Removal Rule: a non-citizen convicted of a violent felony, or of a serious felony on a list set in statute, is ordered removed by the sentencing court at sentencing, as federal law already permits and almost never uses. The order is executed on the day the sentence ends, from the prison gate. The bar on return is permanent. Any escrow held under № 003 is forfeit. A country that refuses to accept its own citizen within 30 days loses all visa issuance until it does. No official has discretion to waive, defer or bargain the removal.

How it would work

  1. The list. Violent felonies, as defined in federal law, and a statutory list of serious felonies: trafficking in persons or drugs at distribution scale, weapons offences, fraud above a threshold, and offences against children. The list is in the statute, and it does not include simple possession, driving offences or the misdemeanours that today sometimes trigger removal and sometimes do not. A rule that is certain has to be narrow enough to be applied every time.
  1. Ordered at sentencing. Federal law has since 1994 allowed a federal sentencing judge to enter a removal order as part of the criminal judgment, on the government's motion. It is used in a few hundred cases a year. Under the Rule, the sentencing court, state or federal, enters the order automatically on a conviction from the list, with the same appeal rights as the conviction itself. The criminal process, with its jury, its counsel and its full due process, is the removal process. There is no second proceeding.
  1. Executed at the gate. The removal is carried out on the day the sentence ends, with the travel document obtained during the sentence rather than after it. The person does not enter immigration detention; there is nothing to detain them for, because the order was entered years earlier and the document was secured while they served.
  1. Permanent bar. No return, no waiver, no application for a visa of any kind. The rule is what a guest agrees to at the door under № 003, and it is stated there.
  1. The escrow. The fifth of pay banked for the trip home under № 003 is forfeit, to the fund, on conviction. The guest who breaks the compact does not collect its benefit.
  1. The countries. A country that will not issue a travel document for its own citizen within 30 days of the request loses all United States visa issuance, for every category, until it does. The power exists in law today and has been used once, in 2017, against four countries, all of which complied within months. The Rule makes its use automatic.
  1. The line to the citizen. The Rule applies to guests, permanent residents and every non-citizen. It does not and cannot apply to citizens, including citizen children of the person removed, who stay if they choose and are, under № 004 and № 008, the country's responsibility. A citizen is never removed.

The numbers

The cases. On the order of 50,000 non-citizens a year are convicted of felonies that would fall on the list, most of them in state courts. Today the share ultimately removed is not published; estimates run from a half to two-thirds, over a period of years.

The savings. A removal order entered at sentencing and executed at the gate eliminates the immigration detention that follows a criminal sentence today, which averages months at $165 a day, and the removal proceeding, which occupies the courts of № 099 for hearings that the criminal conviction already decided. On the order of $1 billion a year in detention and court costs.

The countries. About a dozen countries have been designated at various times as refusing or delaying the return of their citizens. The 2017 sanctions produced compliance within the year in every case.

The deterrent. Not estimable with honesty, and the proposal does not estimate it. The certainty literature suggests it is larger than the current arrangement's, which is close to zero.

The honest objections

"A guest who has lived here thirty years and commits one felony loses everything, and that is disproportionate." It is the rule of the compact, stated at the door, and the list in item 1 is drawn to serious offences so that the rule is applied to the crime that warrants it and not to the possession charge or the bar fight. The alternative, discretion, produces the thirty-year resident removed for a twenty-year-old conviction and the recent arrival released because the paperwork was slow. A rule that is the same for everyone is proportionate in the only sense a rule can be.

"Ordering removal at sentencing denies the person the immigration hearing they would have had." It gives them the criminal trial, with a jury, counsel and appeal, which is more process than an immigration hearing has ever provided, and it makes the removal a consequence of the conviction, decided by the same court, at the same time, with the same appeal. The second proceeding was never protection; it was delay, and the delay was the arbitrariness.

"Visa sanctions punish an entire country's students and businesses for its consulate's slowness." They do, briefly, which is why they work: the 2017 sanctions produced travel documents within months from countries that had refused them for years. A country that wishes its citizens to visit the United States has one obligation in return, which is to take back the ones the United States has convicted.

"This separates families, and the citizen children suffer." It does, and the proposal says so rather than pretending the rule has no cost. The children are citizens and stay if they choose, with the country's full obligations to them. The parent chose the crime against the compact's stated terms. The current system separates the same families, later, after years of uncertainty; the Rule separates them at a known time under a known rule, which is the least cruel version of a consequence that any serious immigration policy will impose.

"Removing people to countries that will harm them is prohibited." It is, by the Convention Against Torture, and the Rule does not touch that bar; a person who would be tortured on return is not returned, under the same law as now. What the Rule ends is the general discretion, not the specific protection.

Sources

  • 8 U.S.C. § 1228(c), judicial removal at sentencing (Immigration and Nationality Act § 238(c))
  • 8 U.S.C. § 1253(d), discontinuation of visas to countries that refuse to accept their nationals, and the Department of State's 2017 sanctions on Cambodia, Eritrea, Guinea and Sierra Leone
  • Daniel S. Nagin, "Deterrence in the Twenty-First Century," Crime and Justice 42 (2013)
  • Zadvydas v. Davis, 533 U.S. 678 (2001)
  • U.S. Government Accountability Office, Immigration Enforcement: Arrests, Detentions, and Removals, and Issues Related to Selected Populations (GAO-24-106233)
  • Proposals № 003 (The Open Door Compact); № 004 (CitizenCare); № 007 (The Humane Perimeter); № 008 (Baby Shares); № 056 (The Clearance Rate); № 060 (The Detention Clock); № 099 (The Immigration Court)