Using the pardon power to prevent deportation: legitimate, desirable, or neither in a federal system?

• Author: Demleitner, Nora V.
• Position: Symposium on Federalism at Work: State Criminal Law, Noncitizens and Immigration Related Activity

Good afternoon. Let me join my colleagues in thanking the Journal for putting on such a timely and exciting conference. I also want to express my gratitude to the Journal and to Professor Medina for inviting me.

Despite discussions about immigration reform and legislative proposals to such effect, (1) as you heard from Professor Hing earlier, the number of removals from the United States is at a record high, as is the number of those deported because of criminal convictions. (2) In recent decades, this country has become increasingly unforgiving toward all offenders--citizens, permanent residents, and especially the undocumented. This development is particularly true in the immigration context. (3) Despite occasional sympathetic accounts of a permanent resident alien with a very minor criminal conviction and strong equities counseling against deportation, (4) these are rare media stories these days.

Generally, those immigrants with a criminal conviction seem to be the group deemed most dispensable. It is the group most legislators are happily targeting through legislation, as they are the most despised of all--as immigrants and offenders. Even many immigrant advocacy groups are disinclined to favor their cause. The reason obviously is that for them it is important to win concessions and more favorable immigration legislation for law-abiding residents and undocumented immigrants, which requires disaggregating those groups from the "criminal" category.

A recent development in New York State, however, counters the ever more punitive attitude toward immigrant offenders. It could provide an interesting blueprint for other states. It could also trigger a major conflict between the federal and state governments.

Last spring, the then Governor of New York, Mr. Paterson, granted a pardon to a young Chinese immigrant who had been living the American dream. Qing Hong Wu had come from China with his mother when he was two years old, and now was a successful IT executive, with a U.S.-born fiancee. So far, this account appears to confirm the vibrancy of the "American Dream"--but then Wu applied for American citizenship. It was that application that landed him in immigration detention and almost caused his deportation back to China.

Wu's teenage years had been rockier than his professional success might indicate. In 1995 and 1996, he, together with a group of his teenage friends, committed a number of muggings. For those offenses, he ended up serving time. During that time he became a model inmate: he earned his G.E.D. and an associate's degree, and ultimately became a successful executive. When the immigration service detained him and tried to deport him, he sought a gubernatorial pardon, supported by both the sentencing judge and the prosecutor in his case, both of whom lauded his remarkable rehabilitation. The Governor granted the pardon. (5)

This was not, in fact, Governor Paterson's first time issuing a pardon to relieve an individual of immigration consequences. In 2008, the Governor pardoned Ricky Walters, a successful hip-hop artist who had come to the United States from the United Kingdom when he was eleven years old. Walters had had a slightly more serious encounter with the law than Wu, and had served six years for shooting at his cousin and an innocent bystander. He had been released from prison in 1997. From then until 2008 he led not only a crime-free life, but also actively participated in community activities. According to the Governor, Waiters had led an exemplary life for over a decade. (6)

In both cases the Governor's decision, therefore, centered on the facts that the former offenders had led, at least for a decade, crime-free lives since their release; that both of them had family in the United States; and that both were successful in their work.

Let us now fit these two cases into the overarching legal framework. Under 8 U.S.C. [section] 1227(a)(2), crimes of moral turpitude, committed within five years of entry and punishable by more than one year of imprisonment, multiple crimes of moral turpitude, aggravated felonies, conviction of a high-speed flight from an immigration checkpoint, and failure to register as a sex offender are deportable offenses. (7) If a governor, however, issues a full and unconditional pardon for the underlying (state) crime, deportation can no longer occur. A presidential pardon would have the same effect in case of a federal offense. (8) Obviously, in our case, we are focusing on state crimes committed in the state of New York.

In some cases a governor may pardon an offender, but that pardon will not void immigration consequences resulting from the conviction. Among crimes for which pardons are ineffective as far as immigration consequences are concerned, almost all are controlled substance offenses, certain firearms offenses, crimes of domestic violence, including stalking and child abuse and neglect, and a number of other select offenses under 8 U.S.C. [section] 1227(2)(B)-(E). (9) As a consequence, the Waiters and Wu pardons had different effects. In Mr. Wu's case, no further immigration consequences could result. He could even become a U.S. citizen if the immigration service permitted him to do that by finding him to be of good moral character. (10) In Mr. Waiters' case, some immigration consequences could have resulted from his conviction because his conviction was based on a firearms offense. (11)

You may argue, you may wonder, why do we need pardons? Are there not other, perhaps more regular, mechanisms to prevent deportation based on a criminal conviction that make it possible for immigrants to stay in the United States despite their convictions? As...