Governor Pardons: A New Defense Against Removal and Deportation?
Over the past 10 years, attorneys who defend immigrants in deportation and removal proceedings have faced several obstacles.
As a result of changes to immigration law in the mid 1990s, immigration lawyers have confronted the following:
- Transformation of minor, non-violent convictions in state court into serious, aggravated felonies at immigration court
- Elimination of discretion for immigration judges in determining if a criminal offense warrants taking away an immigrant’s permanent resident status
- Addition of convictions which took place 10, 20, 30 years ago, long before the 1990 changes, as grounds to deport immigrants
With nowhere to turn, more and more immigration appeals have been filed at the Board of Immigration Appeals and the Federal Courts of Appeals.
For many immigration deportation cases, this has been the only way to effectively fight against these unfair changes to immigration rules for criminal convictions.
The New York Plan To Forgive Minor Criminal Offenses
Earlier this week, New York Governor David Paterson shocked immigration opponents. In a bold move, he announced plans to create the nation’s first “Pardon Panel”. This panel would be responsible to review past criminal convictions of permanent residents for possible pardons. Once a pardon is granted, the government would prevent immigrants from facing automatic deportation in deportation and removal hearings.
To qualify for a pardon, Paterson said that immigrants will need to meet two requirements. First, permanent residents need to show they are not a danger to society. Second, their personal history, since their conviction, will have to demonstrate rehabilitation.
The basis of Paterson’s formula is not new. I recall, from my early days as a immigration lawyer in San Diego, the idea of giving lawful permanent residents a second chance existed until the 1990 changes. Under former law, there was a double-step review at immigration court. To the extent the immigrant spent a longer time in jail, the immigrant was required to show stronger proof of rehabilitation.
As discussed in Deportation Defense: The Battle To Distinguish Major And Minor Criminal Convictions, immigration law needs to differeniate between serious criminal offenses and less serious, minor criminal offenses.
As the New York Governor noted, “there are some individuals whose crimes are egregious or who pose a threat to public safety. And they are justly removed from the United States.”
Under the current immigration system, too many lawful permanent residents who have not committed major crimes are separated from their spouse, their children, and their friends.
In the past ten years, 60,000 immigrants, lawful permanent residents who had lived here more than 10 years, have been deported due to minor crimes. They had started families and had 88,000 children who were U.S. citizens.
Speaking about lawful immigrants who been convicted only for minor offenses, Paterson states, “For them, our national immigration laws leave no room to consider mitigating circumstances. But in New York, we believe in rehabilitation. And we believe in renewal. And we believe in second chances.”
Governor Paterson is on point.
As an immigration deportation-removal defense lawyer, I have seen far too many innocent, hard-working immigrants placed in a situation where all that they know and cherish is but one step from being taken away from them.
Looking Ahead: Probable Factors In Granting Pardons
Although the exact details are still unknown, it is likely if a lawful resident has made positive contributions to their community, raised a family, maintained steady employment, served in the military, or attended college, and not committed additional offenses, they stand a strong chance of receiving a pardon.
Also, factors like how long a permanent resident has lived in the United States, their family ties abroad, and their ability to speak the language of their birth country may be relevant evidence in decisions whether to grant or deny a pardon request.
Even though the possibility is still remote, it is possible that seeking state pardons can become a new deportation and removal defense strategy.
The New York governor needs to be commended. He has taken a major step in fighting unfair laws used to deport hard working, deserving immigrants from the United States.
Other governors should follow suit.
By Carlos Batara, Immigration Law, Policy, And Politics