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Jason A. Cade

Abstracted from: Jason A. Cade, Deporting the Pardoned, 46 U.C. Davis Law Review 335 (December, 2012) (314 Footnotes)


      On May 24, 2010, just after Arizona Governor Janice Brewer signed the controversial, anti-immigrant S.B. 1070 into law, New York Governor David Paterson created a special panel to expedite review of pardon applications from immigrants deportable as a result of past criminal convictions. As Paterson made clear in statements to the press, the purpose of the panel was to counter “extremely inflexible” deportation laws and to “set an example for how to soften the blow in those cases of deserving individuals caught in the web of our national immigration laws.” Over the next six months, the pardon panel received about 1,100 pardon petitions. In December of 2010, Paterson issued full and unconditional pardons to thirty-three noncitizens.

      The noncitizens pardoned by Paterson all had reformed following a single conviction in the 1970s, 80s or 90s. Most of their convictions became deportable offenses retroactively. One recipient of a pardon was Francisco Moya de Leon, a lawful permanent resident of the United States since 1988 whose wife and children are U.S. citizens. When Moya de Leon applied for naturalization in 2009, the immigration agency denied his application and put him into removal proceedings on the basis of a 1994 drug possession conviction, despite strong equities and an otherwise clear record.

      One might think Paterson's Christmastime pardon of Moya de Leon promised a happy conclusion. Whether exercised by a state governor or the President, a full and unconditional pardon is generally understood to be a final judgment by the chief executive of a sovereign government that a conviction under that sovereign's law no longer stands. And Moya de Leon's pardon, like the others that Paterson granted to noncitizens, contained language explicitly releasing him from “all sentences, judgments and executions” based on the conviction, even specifically mentioning “relief from removal.”

      Unfortunately for Moya de Leon, the Board of Immigration Appeals (“BIA” or “Board”) has held that a pardon will not remove the immigration consequences of a conviction for a controlled substance offense. Indeed, as the BIA has interpreted the Immigration and Nationality Act (“INA”), a pardon by the President of the United States or a state governor will only preclude deportation on the basis of certain (albeit important) categories of convictions. Nor are pardons the only state process that, despite otherwise eliminating, deferring, or undoing convictions, are deemed to have limited effect in immigration proceedings. Under current rules, a noncitizen may be deported on the basis of a conviction pending on direct appeal, judicially expunged, or treated as a deferred adjudication or suspended sentence under state law.

      Scholars have paid little attention to these federal immigration rules and their implications for the constitutional balance of federal and state power. While the proliferation of sub-federal laws affecting immigrants has inspired an abundance of academic and political interest, that interest is focused primarily on whether state or local laws that regulate immigrants infringe on federal authority. But as federal immigration policy becomes increasingly intertwined with state criminal enforcement, core state structures are impacted in significant ways. Some of the federal rules run counter to state criminal justice interests, intruding on state autonomy in underappreciated and perhaps unintended ways.

      In making deportation laws hinge on convictions under the laws of any sovereign, Congress relies heavily on state criminal procedures that identify, prosecute, and sentence noncitizens. Through this choice, which represents huge resource-savings benefits to the federal government, Congress has in essence incorporated state laws of general applicability into the federal regulatory scheme. This is not a new scheme, nor is it unique to immigration regulation. But until relatively recently, federal immigration law respected post-conviction state processes such as pardons, appeals, and expungements, as well as alternative dispositions such as deferred adjudications and suspended sentences.

      By giving preclusive effect to these core state processes, the historical approach preserved interests at the heart of state autonomy. Though less frequently used in recent times, pardons have been a vital tool of governance since the earliest known legal codes. Rooted in sovereignty, pardons were integral to the power to punish from colonial times to at least the early twentieth century. Appeals, deferred adjudications, and expungements also comprise integral components of the states' administration of their general criminal laws. Individually and collectively, these processes work to ensure systemic integrity, correct errors, calibrate punishment, encourage rehabilitation, conserve judicial and penal resources, and remove civil disabilities.

      In view of the significant systemic interests at stake, the relevant statutory rules should be read to avoid conflicts with state authority to the extent possible. Statutory construction based on implication or extrapolation is insufficient in this context; rather, Congress should be required to make its intent to override pardons or other core state post-conviction processes explicit in the statute. Where plausible doubts can be raised about a construction that encroaches on a state's sovereign criminal powers, courts should interpret the statute to preserve state authority. This clear statement rule--a federalism canon--would ensure that Congress, rather than an administrative agency, has made the considered and deliberate decision to upset the usual balance of powers in our dual sovereign system. Lacking the binding force of Marbury-style judicial review, however, the federalism canon would not prevent Congress from subsequently clarifying its intent in the text of the statute.

      The Supreme Court has long used a variety of federalism canons to shore up state authority against federal encroachment, even where Congress acts within its enumerated constitutional powers. On the other hand, the Court has never employed a federalism canon in the context of immigration regulation. This absence is perhaps not overly surprising given the deference long accorded the federal government in setting deportation policy. Although the power to regulate the selection and exclusion of immigrants is not enumerated in the Constitution, the Court decreed in the late nineteenth century that Congress has plenary power to regulate immigration as a corollary of national sovereignty. This high degree of deference has allowed Congress to regulate immigrants in ways that would never be permissible if applied to citizens. The interpretive rule I propose does no injury to the federal government's immigration authority, however plenary it might be. Indeed, the Court already employs a variety of other clear statement rules in immigration cases, such as the more generalized canon of constitutional avoidance and the presumption against retroactivity. These tools of statutory construction require a higher than usual degree of clarity in the text of a statute when constitutional concerns are at stake, even if these concerns fall short of actual limits on congressional authority.

      As federal immigration policies become increasingly intertwined with state criminal justice structures, a federalism canon may be essential to ensure that traditional state authority over generally applicable governmental processes like the administration of criminal justice is not lightly or inadvertently disregarded. The justifications for the use of the federalism canon in other areas apply with at least as much force in the immigration context. Reliance on the national political process, for instance, is unlikely to adequately safeguard the federalism interests at stake, because the individuals most affected by deportation rules often have relatively little political power. An interpretive rule requiring Congress to express its intention to override a pardon or appeal clearly in the statute would increase the likelihood that legislators actually confront the federalism issues.

      Although I analyze the implications of the federal rules for a range of state post-conviction processes, my focus is on the pardon restrictions. The first two Parts of this Article place the immigration rules that limit these kinds of state processes in context. Part I illustrates how Congress attaches federal deportation consequences to criminal conduct punishable by states. Drawing in part on early immigration files held at the National Archives, I show that pardons and other post-conviction processes have long been considered preclusive of removal in immigration proceedings. Part II situates these state criminal processes within the dual sovereign constitutional structure and reviews the functions that these powers play in governance, specifically addressing the implications of the federal immigration constraints for state autonomy. Part III then argues that Congress should be required to make its intent to override pardons and other core state criminal processes unmistakably clear. As I hope to demonstrate, the application of a federalism canon in the immigration context is justified where federal law intrudes on generally applicable criminal processes. Applying the federalism canon to the INA, there is insufficient clarity that Congress intended to limit the effect of pardons to remove the immigration consequences of state convictions. Finally, I briefly address some of the considerations for applying the federalism canon to other state post-conviction processes implicated by the federal rules.

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      Current immigration law has been criticized for its severe restrictions on discretionary relief and its dragnet approach of sweeping in numerous minor offenses under the many provisions providing for deportation on the basis of state criminal convictions. Compounding the problems this scheme creates, adjudicators in charge of administering immigration policies interpret the law to limit the authority of states to determine the continuing validity of those convictions through core state processes like pardons, appeals, and expungements. This interpretation transgresses the ancient principle that the sovereign's power to punish should include the power to forgive.

      Ideally, Congress would explicitly clarify through federal legislation that it respects state authority to remove the immigration consequences of convictions through pardons, expungements, and similar procedures. In the meantime, clear statement rules like the federalism canon can protect state authority to maintain the systemic integrity of criminal justice and exercise membership decisions within a traditional sphere of authority. This interpretive safeguard may be critical as federal immigration policies become increasingly intertwined with state justice structures. While not ultimately constraining Congress's authority to set immigration policy, the federalism canon will help ensure that legislators confront the federalism values at stake when federal rules invade states' generally applicable criminal laws.

Jason A. Cade. Acting Assistant Professor, New York University Law School.