When it comes to crimmigration issues, immigrants need as many allies as possible. Governor David Paterson of New York was one such ally.
In December, prior to leaving office, Person pardoned 33 immigrants. The immigrants pardoned were lawful permanent residents who had been convicted of minor crimes several years ago.
Without the pardons, most of them faced nearly automatic removal from the United States.
What Is A Pardon?
A pardon is the forgiveness based on a person’s proof of rehabilitation. It does not mean a person has been deemed innocent. It does not erase convictions from public records. Rather, it restores rights which have been lost as a result of the convictions – such as the right to certain professional licenses and the right to vote.
A pardon can only be granted by the governor of a state (for state crimes) or the president of the U.S. (for federal crimes) – unlike an expungement which is granted by a judge.
Governor Pardons: A New Defense Against Removal And Deportation
Over the past 15 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.
Hence, the need for pardons.
New York Creates The Nations’s First Immigration Pardon Panel
With the 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), the concept of rehabilitation disappeared from immigration law for thousands of lawful permanent residents.
Despite long standing family ties and positive community contributions, many immigrants with minor criminal convictions have not been allowed to show they deserver a second chance.
To partially counter such rigidity, Paterson created the nation’s first Immigration Pardon Panel in May 2010.
As he announced a set of pardons just before Christmas, Paterson stated, “That our federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents.”
“With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer.”
How The New York Pardon Plan To Forgive Immigrants With Minor Convictions Works
The New York Pardon Panel will be responsible to review past convictions of permanent residents for possible pardons. Once a pardon is granted, it will prevent immigrants from facing automatic deportation.
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 until the 1990 changes. Under former law, there existed 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.
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.
Why Pardon Panels Are Crucial To Deportation Defense
While casual observers may feel the number pardons is small, the potential impact of Paterson’s actions could be enormous.
Pardon panels could help stem the tide of callous deportation and removal laws until Congress finds the courage to pass more rational immigration policies.
As discussed in Deportation Defense: The Battle To Distinguish Major And Minor Criminal Convictions, immigration law needs to differentiate between serious criminal offenses and less serious, minor criminal offenses.
Over the past decade, over 60,000 lawful permanent residents, who had lived here more than 10 years, were deported due to minor crimes. Most had families, including 88,000 U.S. citizen children.
While in office, Paterson understood this point about the immigration system better than most of his political colleagues.
“There are some individuals whose crimes are egregious or who pose a threat to public safety,” he explained, “and they are justly removed from the United States.”
Speaking about immigrants to be pardoned, Paterson stressed, “They have paid their debt to society.”
“They have benefited their family, have been good neighbors in their community and would otherwise be enterprising citizens.“
Governor Paterson is on point.
As an immigration deportation 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 – despite only having committed a relatively minor offense.
Even though the possibility is 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. The sooner, the better.
By Carlos Batara, Immigration Law, Policy, And Politics