Though sometimes called an act of grace and mercy, a pardon, where properly granted, is also an act of justice . . . .
—Knapp v. Thomas, 39 Ohio St. 377, 381 (1883)
Introduction
Former President Trump’s selective use of his pardon power garnered much attention during his presidency, including some uses that have sparked controversy due to their particular personal and political connections to the President.1 Despite who Trump chose to pardon, criminal justice advocates maintain the importance of increasing pardon power and recommend that President Biden do the same for people with drug and other types of convictions.2 But mostly left out of that conversation is the impact of pardons on immigrant communities.3 Consider the story of Ousman Darboe, a now twenty-eight-year-old Gambian immigrant from New York City who had been in Immigration and Customs Enforcement (ICE) detention for over three years.4 His wife found out she was pregnant just one week after ICE arrested him.5 Two years later, Mr. Darboe had only ever held his daughter twice while in detention.6
During his time in detention, Mr. Darboe received a rare pardon from New York Governor Andrew Cuomo for the one adult criminal conviction on his record—for a crime for which Mr. Darboe maintains he did not do.7 While Mr. Darboe was finally released from detention on bond in September 2020,8 he was released with an ankle monitor as his immigration case continued.9 Despite being pardoned by Governor Cuomo, Mr. Darboe remains threatened with removal from the United States.10
People like Mr. Darboe continue to face the threat of deportation because the power of pardons to eliminate the immigration consequences of convictions is not absolute.11 Under current Board of Immigration Appeals (BIA) case law, pardons can relieve immigration consequences in some circumstances12 but are entirely ineffective in two significant instances. First, pardons for certain underlying convictions do not waive deportability.13 Section 237(a)(2) of the Immigration and Nationality Act (INA), also known as the Pardon Waiver Clause, provides that a full and unconditional pardon by a governor will prevent deportation through a statutory pardon waiver for four categories of offenses: Crimes Involving Moral Turpitude (CIMTs),14 multiple convictions, aggravated felonies, and high-speed flight from Department of Homeland Security checkpoints.15 However, certain exceptions do not fall within the Pardon Waiver Clause.16 In other words, if a governor issues a full and unconditional pardon for one of those underlying offenses, the pardon will not void immigration consequences resulting from that conviction.17 If a governor issues that pardon for a crime that falls outside of one of those exceptions, deportation can no longer occur.18
Second, pardons are often rendered ineffective when someone is considered inadmissible based on a conviction, meaning that the person is considered present in the United States without being properly “admitted” into the States.19 Although the INA’s inadmissibility grounds do not expressly mention pardons, courts and the BIA have often read the statute to give pardons no effect when someone is charged on inadmissibility grounds.20
While it is not uncommon for certain types of offenses to trigger grounds of deportability and inadmissibility,21 state-pardoned offenses should be excluded from triggering any immigration consequences. Because the failure to recognize the full effects of state pardons implicates federalism and constitutional concerns, this Note argues that courts and federal administrative agencies should instead recognize full and unconditional gubernatorial pardons for all offenses for immigration purposes.22
To lay the groundwork for this argument, Part I of this Note first provides a historical overview of the plenary doctrine, relevant INA provisions, and the limited jurisprudence involving the Pardon Waiver Clause. Part I also provides a brief historical background of the origins of the gubernatorial pardon power and then traces its evolution to its present-day use as a deliberate resistance tool by governors to prevent deportation of its state residents. In tracing this history, Part I suggests that courts should reject an expansive application of the plenary power doctrine in cases involving state pardons because pardons serve as a protective, inclusionary measure by governors that signal an effort to curb deportation.
Part II draws from federalism principles and state sovereignty to explain why federal immigration consequences should not interfere with state governors’ distinct acts of pardons. Part II concludes that the exceptions enumerated in the Pardon Waiver Clause give rise to federalism issues and the constitutional problem of impermissible commandeering.
To resolve the federalism and constitutional concerns raised with the current immigration enforcement scheme for certain individuals pardoned by state governors, Part III proposes that Congress amend immigration laws to redefine the term “conviction” to exclude pardoned convictions. Until then, Part III also proposes that the Biden Administration should give full faith and credit to state pardons as a discretionary matter when considering whether to deport a noncitizen on the basis of their criminal history. Specifically, the Biden administration should instruct ICE to use prosecutorial discretion by declining to initiate removal proceedings and terminating proceedings already underway for individuals with pardoned offenses. For individuals facing grounds of inadmissibility, the INA should be read by adjudicators in such a way that pardons overcome inadmissibility for all underlying convictions.
I. Background
A. Plenary Power and the Erosion of Federal Exclusivity Over Immigration
For any state-related argument challenging federal immigration enforcement to withstand judicial scrutiny, it must first be examined through the plenary power doctrine. This Section provides a brief overview of the doctrine before tracing its gradual erosion. As such, this Section seeks to establish that plenary power should not apply in instances regarding immigration enforcement of state-pardoned individuals.
1. Traditional Understandings of Plenary Power
The federal government’s power over immigration is traditionally understood through the plenary power doctrine. Since deciding Chae Chan Ping v. United States in 1889, the U.S. Supreme Court has viewed the federal government’s authority over immigration as exclusive and closely tied to the nation’s sovereignty.23 This exclusivity has traditionally been understood as rooted in the need for the United States to speak with one voice on foreign affairs, to maintain safety and security, and to maintain uniformity in the development of immigration laws.24
Courts continue to grant significant deference to congressional and executive branch decisions relating to immigration.25 For example, immigrant rights advocates have relied on this federal authority over immigration policy to establish that restrictive immigration laws in states such as Arizona, Alabama, and California were unconstitutional because they were preempted by federal law.26 This deference was also recently evident in the U.S. Supreme Court’s 2018 decision upholding President Trump’s revised travel ban.27 In Trump v. Hawaii, the Court noted that “[b]ecause decisions in [immigration] matters may implicate ‘relations with foreign powers,’ or involve ‘classifications defined in the light of changing political and economic circumstances,’ such judgments ‘are frequently of a character more appropriate to either the Legislature or the Executive.’”28 But as discussed below, it is important to note that this application of plenary power does not address situations involving state efforts to protect immigrants from deportation.29
In sum, this traditional plenary power analysis fails to take into account the historical basis for state authority in protecting immigrants through the criminal legal system.30 As the next Section will demonstrate, not all state efforts impacting immigrants are superseded by federal authority through the plenary power doctrine.
2. The Shift from Plenary Power to the Recognition of State Authority in Protecting Immigrants
While some courts and scholars contend that the plenary power doctrine forecloses states from playing a direct role in immigration enforcement decisions,31 others have argued that the plenary power doctrine is not absolute and has, in fact, eroded significantly over time,32 especially in instances when immigration intermingles with other areas of law.33 This is particularly relevant in criminal law,34 where states, through their decision-making authority, maintain an increasingly important role in federal immigration determinations.35 Evidence of states’ authority over federal immigration matters can be found in Esquivel-Quintana v. Sessions, in which the Court dealt with the statutory meaning of “sexual abuse of a minor.”36 There, the Court reasoned that state trends in the definition of a crime influence the federal definition of the crime for immigration purposes.37 Specifically, the Court determined that because the majority of state criminal codes set the consenting age at sixteen for statutory rape offenses predicated exclusively on the age of the participants, the federal statute should follow that same definition in determining the immigration consequences of the crime at issue in the case.38 The Court’s deference to state consensus in Esquivel-Quintana suggests that courts would not foreclose other forms of state power and authority in criminal law from judicial review in cases involving federal immigration.39
Another indication of the shift away from plenary power is the open question that remains for courts to recognize the sovereign authority of state governments regarding the inclusion and protection of immigrant communities.40 This open question remains following the Court’s opinion in Arizona v. United States, which ultimately determined that states may not engage in anti-immigrant enforcement when such action intrudes upon the federal government’s plenary power to determine immigration law.41 As scholar Stella Burch Elias pointed out, the Court in Arizona left open the opportunities for state action concerning pro-immigration and inclusionary measures because the opinion is silent as to such regulation.42 In support of this, courts in recent years have further supported states’ use of inclusionary laws and anti-enforcement measures as a valid mechanism of protective state and local resources.43 As a result, Arizona leaves open the argument that there is space for states to use their powers, including their pardon power, to combat anti-immigrant federal immigration laws.
In sum, the open question regarding states’ inclusionary and protective measures towards immigrants in their communities, coupled with the state’s sovereign authority related to the criminal legal system, suggests that plenary power should not apply in instances regarding immigration enforcement of state pardoned individuals. To better understand why, the next Section delves deeper into the unique sovereign nature of state pardon powers.
B. Pardon Powers and State Sovereignty
This Section begins with an examination of the origins and current practice of state pardons. Though primarily descriptive, this Section helps establish that a deportation regime based on pardoned convictions cannot be shielded from judicial scrutiny as it operates through states; and that an immigration system that protects states’ sovereignty is not only possible, but probable—it in fact existed throughout U.S. history.
1. Origins of State Pardon Power and Early State Authority on Immigration Matters
Since the colonial era, the power to issue pardons has been a constitutionally reserved state power, specifically rooted in a state’s inherent authority to govern its own affairs.44 The development of state constitutions, coupled with the influence of the newly adopted federal constitution, led to a rejection of the British legacy of complete control of the clemency power within the executive45 and the embrace of governors’ clemency powers in a number of states: the constitutions of twenty-six of the first thirty-five states to join the Union vested the pardoning power to the governor alone.46 Courts have recognized and upheld this gubernatorial pardon power47 and will often refrain from questioning its use.48 In contrast, presidential pardons had been given the same effect in cases of federal offenses.49
Historically, state sovereignty to grant pardons has been a specific component of criminal justice and used to encourage rehabilitation,50 to dispense with court-imposed punishments, and to restore one’s rights and status lost because of convictions.51 For example, in 1878, the framers of the California Constitution specifically contemplated state pardon power as a tool to correct both legislative and judicial deficiencies.52
Lastly, governors during the colonial period also used their newly expanded political power to shape immigration within their own states.53 For example, state governors were often empowered to issue conditional pardons on the condition that an individual leave the country for a given period of time.54 The use of pardons in this way was significant during this period because it signaled an acceptance of state power over regulating immigration.55 The following Section will illustrate how pardons have evolved into a sophisticated, complex procedure that is exercised only after exhaustive consideration and with a desire by governors to protect the immigrant populations who reside in their respective states.
2. The Modern Mechanics of State Pardons
Before assessing the current failure to recognize the full effects of state pardons and how that implicates state sovereignty, it is first helpful to understand how pardons operate in our present day. Today’s system differs from the use of clemency power envisioned during the colonial period.56 Presently, all fifty states have a mechanism for state executive pardons.57 Each state has the power to craft its own structure for granting pardons, which generally fall into three categories: (1) the state’s constitution grants exclusive authority to the governor;58 (2) the governor, through the state constitution, delegates their exclusive authority to an executive board;59 or (3) the state’s constitution provides that clemency power is shared between the governor and an executive body.60 Forty-seven states have established an executive-branch board with at least some influence in the pardon process.61 In some states, the governor sits on the board.62 In others, the governor must consult with the board before issuing a pardon.63 And in others, the governor appoints an independent pardons board, which makes pardon determinations without gubernatorial approval.64 “[I]n a growing number of states, a full pardon [also] entitles the recipient to judicial expungement.”65 While these structures vary widely, they in no way derogate from the governor’s pardon authority.66
Each state also has the power to craft its own procedure for applying for and granting pardons.67 On the state executive level, the pardon application process often begins with submitting an extensive application calling for information on family, criminal history, prior applications, educational history, employment, and supporting documentation showing rehabilitation.68 In determining whether to grant a pardon, the decisionmaker considers all of the information and factors before it, including, but not limited to, the severity of the offense; the impact on the survivor and the survivor’s input; the applicant’s criminal history and how much time has passed since the most recent offense; whether the public interest is served by granting a pardon; the applicant’s accomplishments since their most recent offense; work history; subsequent contact with the criminal legal system; character references; and community service.69 Pardons are issued on an individualized, case-by-case basis after consideration of the facts and circumstances of each case and the merits of each applicant.70
C. The Evolving Treatment of Pardons in the Immigration Context
To understand how the state pardon power interacts with the current immigration scheme, it is first important to trace the effect of pardons throughout their history. Prior to 1917, pardons appeared to have full effect on underlying criminal convictions.71 In immigration cases that were adjudicated during this period, pardons were generally understood to remove immigration consequences that would follow the underlying conviction.72 Moreover, legislative history involving a 1908 bill to add a ground of deportation on the basis of criminal convictions further indicates that pardons were understood to remove immigration consequences.73
Among the immigration consequences removed by pardons during this period, it is worth noting that the federal government also understood pardons to cure inadmissibility.74 For example, in a case referred to the Attorney General by the Treasury Department,75 the Attorney General determined that an immigrant pardoned for a crime that would otherwise render him inadmissible “should be permitted to land.”76
While the United States saw significant immigration reforms through the Immigration Act of 1917, the Act reveals brief consideration of pardons.77 Section 19 simply expressed that a noncitizen “who has been pardoned” could not be removed for a CIMT conviction.78 The 1917 Act provided that “the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned.”79 The relevant legislative history suggests that pardons were not a preoccupation during this period of reform,80 and because the pardon waiver language in the Immigration Act of 1917 was unqualified, it was understood to bar removal.81
When the INA was eventually adopted in 1952, it restructured the statutory provisions affecting pardons.82 Consistent with prior immigration legislation, § 241(b) of the Act clearly precluded deportation for any noncitizen convicted of a crime involving moral turpitude if granted a full and unconditional pardon by the President of the United States or a state governor.83 Notably, the restructured code placed deportation categories for convictions related to controlled substances, weapons, alien registration, and prostitution in a different statutory provision, which did not explicitly provide an exception for pardoned offenses.84 In the restructured code of 1952, the pardon clause made no distinctions between the different offenses within the scope of the general criminal deportation grounds.85 In 1956, this changed when a sentence was added to create a criminal carve-out for specified drug violations.86
During this time, the BIA appeared reluctant to depart from the long‑held recognition that full and unconditional gubernatorial pardons would remove the immigration consequences of a conviction.87 For example, in In re H-, the BIA found that gubernatorial pardons continued to remove the deportation consequences of criminal convictions for CIMTs.88 Although this decision did not turn on Congress’s power to limit state pardons, it demonstrates how administrative decisions continued to interpret the 1952 Act to give effect to pardons in certain situations outside of its enumerated limitations.89
The last of the major immigration reforms took place in 1996 through the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act, which is infamously known for expanding the categories of deportable crimes and thereby further criminalizing the immigration legal system.90 Interestingly, the pardon clause remained substantively unchanged aside from its renumbering to § 237(a)(2)(A)(vi), and its now-familiar exceptions based on convictions for CIMTs, aggravated felonies, and high-speed flight from immigration authorities.91 Although the provision does not extend to all criminal grounds of removal, such as weapons or domestic violence offenses, the provision is unchanged as it applies to CIMTs and aggravated felonies, the two largest categories of deportable offenses.92
As the law stands today, there are two major limits of state pardons. First, gubernatorial pardons can only prevent deportation through a statutory pardon waiver for specific categories of offenses.93 Second, because the statute is drafted as a form of relief from deportation, the statute has been read to deny relief for inadmissibility.94 Although the INA’s inadmissibility grounds do not expressly mention pardons, courts and the BIA have often read the provision to give pardons no effect when someone is charged on inadmissibility grounds.95 The following Section examines existing legal challenges to the Pardon Waiver Clause and ultimately argues that courts and the BIA have taken the wrong approach in their treatment of gubernatorial pardons.
D. Existing Legal Challenges to 8 U.S.C. § 1227(a)(2)(A)(vi) and the Failure to Recognize Gubernatorial Pardons as a Resistance Tool for State Sovereignty
In cases challenging removal based on pardoned convictions that fall outside the Pardon Waiver provision, both courts and the BIA have consistently rejected claims that a state’s full and unconditional state pardon affords any relief for immigration purposes. Notably, the vast majority of these cases engage in a purely statutory analysis rather than engaging in any searching analysis of constitutional implications and state sovereignty.96 As such, denials of these challenges have relied on a strict reading of the statute,97 apparently assuming that Congress’s determination regarding the criminal carve-outs contained in the Pardon Waiver Clause simply preempt any conflicting action by a state governor.
Courts have also been asked to weigh in on whether the Pardon Waiver Clause provides relief for inadmissibility.98 Several decisions have restricted the effect of pardons to deny relief for inadmissibility by relying on a strict reading of the statute.99 In Aguilera-Montero v. Mukasey, which involved a noncitizen who was placed into removal proceedings on inadmissibility grounds due to his criminal conviction for a controlled substance offense,100 the Ninth Circuit denied a constitutional challenge to the provision on equal protection grounds, ultimately ruling that the noncitizen was still inadmissible despite a state pardon.101
The Second Circuit in Darboe v. Garland is also currently engaging with this inadmissibility question.102 There, Mr. Darboe, who was highlighted in the Introduction, challenged the BIA’s denial of his motion to reopen on the basis that he remained inadmissible despite receiving a gubernatorial pardon.103 In its decision, the BIA ruled that the gubernatorial pardon “does not refute the validity and finality of the Immigration Judge’s adverse credibility finding in his prior proceeding.”104 Notably, Governor Cuomo then submitted a brief advocating for the full effects of his pardon in support of Mr. Darboe’s relief from removal.105
What the Governor’s involvement in Darboe’s case demonstrates, and what the aforementioned cases fail to consider, is how pardons have been used by governors as a mechanism to resist federal enforcement practices. For example, Georgia explicitly adjusted pardon practice to provide even greater immigration protections in light of federal enforcement changes by changing its practice of issue. After Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996,106 the Georgia Board of Pardons and Parole granted 138 pardons to noncitizens with prior misdemeanor convictions between 2000 and 2001, in order to prevent their deportation.107 During the Trump administration, New York also saw an increased use of state pardon power, not only as a direct rebuke to the President but also as a potential way of rehabilitating and curbing against the especially punitive immigration consequences of criminal convictions that took place during that era.108 Such gubernatorial acts were integral in helping to constrain the abuse of federal executive authority and provided an important counterbalance to overreach by the executive branch.109
II. Analysis of the Problems with 8 U.S.C. § 1227(a)(2)(A)(vi)
Finding someone inadmissible on the basis of pardoned convictions or deporting them altogether on the basis of a pardoned criminal conviction, regardless of the type of offense, raises a series of problems. As this Part will argue in further detail below, ensuing constitutional concerns and principles of comity require that courts and federal agencies reject the Pardon Waiver exceptions altogether and recognize the full effects of state pardons in relieving grounds of deportability and inadmissibility.
A. The Exceptions in 8 U.S.C. § 1227(a)(2)(A)(vi) Violate Federalism Principles
The exceptions, or criminal carve-outs, enumerated in the Pardon Waiver Clause threaten state sovereignty by diminishing state control over state criminal law.110 By wrongfully expanding federal law to restrict the full effect of state sovereign power, the exceptions in the Pardon Waiver Clause disregard the federalism principle of separation of powers. While there are indeed times when Congress can preempt state authority with respect to immigration,111 there are structural limitations enshrined in federalism to suggest that courts should be wary of relying on such plenary power to grant broad deference to federal actions that undermine state executive power.112
The exemptions in 8 U.S.C. § 1227(a)(2)(A)(vi) also violate federalism principles because state pardons typically remove all disabilities stemming from criminal convictions. In New York, for example, the effects of a gubernatorial pardon span a broad spectrum of individual rights.113 Moreover, state legislatures, including New York’s, have codified several legal disabilities associated with a conviction that a pardon reverses, including restoration of the rights to vote,114 serve on a jury,115 hold public office,116 serve as a notary public,117 and own a firearm.118
In addition to restoring state statutory rights, pardons have historically carried broad rehabilitative effects as a matter of federal and state common law.119 Failing to recognize a state pardon’s rehabilitative effects disregards federalism principles.120 As mentioned in Part I of this Note, courts have understood state gubernatorial pardons to be a form of restitution, restoring a person involved in the criminal legal system to the position she would have held but-for the conviction.121 For example, the governors of several states, including Colorado, North Dakota, and Washington, have used their pardon power to provide relief to people convicted of marijuana possession before its decriminalization on the federal level; the Colorado legislature even passed a law authorizing class-wide pardon relief.122 In Nevada, the Nevada Board of Pardons Commissioners passed a resolution at the request of the state’s governor automatically pardoning approximately 15,000 people convicted of possessing one ounce or less of marijuana between 1986 and 2017.123 The legislature in Illinois also gave the governor’s pardon power a part to play in Illinois’s marijuana sealing effort.124 The governors in Iowa, Kentucky, New York, and Virginia have used their power to limit felony disenfranchisement on a class-wide basis.125
Courts have long recognized a state pardon’s ability to cure such federal disabilities. In United States v. McMurrey, a district court found that a collateral attack on a pardon by a court violates federalist principles, as the federal court’s act would eviscerate the effect of a state executive pardon.126 Notably, the court found that the petitioner’s gubernatorial pardon “erases completely the conviction from his past. Pardons grant a person the luxury of travelling back in time to a point before the arrest. For the pardoned crime, the slate is wiped clean . . . .”127
This federalism principle was affirmed by the Court on two occasions. First, in Ex Parte Garland, the Court held that a full pardon “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”128 The Court later elucidated this principle in Knote v. United States, holding that a pardon releases an individual from all disabilities imposed by an offense and restores to him all his civil rights.129 While these two cases are not in the immigration context, they demonstrate the federalism principles at play when courts have established that gubernatorial pardons eliminate all legal consequences of a conviction, including collateral consequences under civil statutes.
In sum, the aforementioned federalism principles and related precedent weigh in favor of the argument that courts and federal agencies should grant stays of removal when based on pardoned criminal offenses.
B. Constitutional Problems Arising from the Pardon Waiver Exceptions
Deportation proceedings on the basis of a pardoned conviction also give rise to constitutional issues. In particular, this Section seeks to establish that finding someone inadmissible on the basis of a pardoned conviction, or deporting them altogether on the basis of a pardoned criminal conviction, constitutes an impermissible commandeering of that state’s criminal enforcement process where a governor does not want its conviction to be so used.
1. The Exceptions in 8 U.S.C. § 1227(a)(2)(A)(vi) Constitute Impermissible Commandeering of State Criminal Enforcement Decisions
This Section seeks to establish that deporting a noncitizen on the sole basis of a pardoned state conviction constitutes an impermissible commandeering of that state’s criminal enforcement process.130 Commandeering has occurred because when a governor grants a noncitizen a full and unconditional pardon, it signals to the federal government that the state objects to this aspect of its criminal legal system being used to effect deportation.131
To lay out this argument, it is important to understand the substantive values invoked by the Court in its Tenth Amendment commandeering cases—in particular, protecting local autonomy and promoting political accountability—before connecting how they are implicated in the context of state pardons intended to curb against deportation. These values are clarified in the seminal case New York v. United States in a way that is instructive here.132 First, the Court in New York established that the federal government may not compel or coerce states into participating in a federal regulatory program.133 In doing so, the Court signaled that the commandeering doctrine preserves individual liberty and local autonomy by preventing the federal government from assuming and centralizing powers not delegated to it through its enumerated powers.134 Second, New York promoted political accountability as a justification for the anticommandeering doctrine in that it lets voters know which government deserves credit or blame for any particular regulation.135
As to the first point in New York regarding the protection of local autonomy, this clearly applies to the INA’s conviction provisions because they allow the federal government to regulate the conduct of people in areas core to state police powers.136 After all, states have authority to make decisions in how their state laws are to be enforced. Already, some states seek to insulate state criminal law enforcement from federal immigration enforcement in whatever ways they can—by sentencing adjustments or by selectively choosing which charges to bring.137 Moreover, since Murphy v. National Collegiate Athletic Association, courts have grown more willing to question federal statutes prohibiting states from insulating state criminal law enforcement from federal immigration enforcement.138 The federal government’s refusal to fully recognize the ability of state pardons to insulate individuals from immigration enforcement warrants similar scrutiny.
As to the second point, the Court’s concern about preserving political accountability certainly applies to governors who decide to exercise their full and unconditional pardon power for two reasons.139 The first reason deals with the political risks associated with granting state pardons to begin with.140 For example, Republican Governor Matt Bevin in Kentucky faced backlash in 2019 when he issued over six hundred pardons and commutations before leaving office.141 The fact that issuing pardons has emerged as a politically risky strategy is important because public reactions to state pardons tend to track alongside evolving notions of what it means to interact with the criminal justice system and how that shapes our current immigration system.142 Concerns already arise when the federal government carries out a deportation despite governor action and public outcry, thus undermining a governor’s ability to determine the full reach of their state pardons.143 In such cases, federal actions diminish the power and value of state pardons. Because of how pardons as a political act factor into public accountability, the problem with triggering deportation based on pardoned state convictions, is that it creates confusion in the lines of political accountability that the anti-commandeering doctrine is designed to prevent.
While some might argue that honoring a pardon is not necessarily the same as forcing a state to use its resources to enforce immigration laws, its connection to the Tenth Amendment is perhaps best understood through the courts’ assessment of policies limiting compliance with ICE detainers.144 In Galarza v. Szalczyk, the Third Circuit found that under the Tenth Amendment’s anti-commandeering doctrine, “immigration officials may not compel state and local agencies to expend funds and resources to effectuate a federal regulatory scheme.”145 Relying in large part on Galarza, an Oregon district court later found that utilizing state and local actions “to enforce a federal regulatory scheme on behalf of INS would raise potential violations of the anti-commandeering principle.”146 Construed broadly, these cases suggest that moving forward with deportation proceedings on the basis of a pardoned conviction unconstitutionally commandeers states by prohibiting them from restricting the exchange of information related to immigration status with federal officials. In other words, when a state decides to pardon an immigrant, it, in effect, signals to the federal government that it does not wish to comply with any federal immigration enforcement against that person, similar to a state’s decision not to honor an ICE detainer.
It is important to note that no state has yet used the commandeering doctrine to challenge the federal government’s criminalized deportation regime, let alone to challenge the criminal carve-outs contained in the Pardon Waiver provision. With that said, because the commandeering doctrine generally allows for states to exercise some control over federal use of state law, there remains a powerful case for preventing the federal government from relying on pardoned convictions to effect deportation, as they are being done without the state’s consent.
In sum, an argument can be made that the Pardon Waiver Clause’s criminal exceptions run afoul of the Tenth Amendment.
III. Proposals
This Part outlines three primary proposals that would make the Pardon Waiver Clause more constitutionally adequate. Section III.A proposes an amendment to the INA’s overly broad definition of a conviction to exclude convictions that have been pardoned. Section III.B proposes that the Biden Administration give full faith and credit to state pardons as a discretionary matter when considering whether to deport a noncitizen on the basis of their criminal history. Lastly, to address inadmissibility, Section III.B also proposes that the Biden Administration direct immigration courts and the BIA to formalize the existing practice of reading the INA narrowly so that gubernatorial pardons overcome conviction-based inadmissibility. This Part sets forth these proposals in greater detail below.
A. Amending the INA to Exclude Pardoned Convictions
To cure any potential constitutional or federalist problems with the Pardon Waiver provision, Congress should amend the INA and redefine the term “conviction”147 in the INA altogether to expressly exclude convictions that have been pardoned.148 This simple, but essential, amendment would resolve the need for a Pardon Waiver Clause altogether, restore the full effects of gubernatorial pardon power, and address both inadmissibility and deportability concerns.149
Promisingly, the federal government has already taken steps to redefine the term “conviction” for immigration purposes.150 In January 2021, U.S. Representatives reintroduced the New Way Forward Act, and in February 2021, the U.S. Citizenship Act of 2021 (USCA) was introduced in the House and Senate.151 The USCA proposes to redefine conviction to exclude “[a]n adjudication or judgment of guilt that has been dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated.”152 The USCA was referred to the House Subcommittee on Immigration and Citizenship in April 2021, but at the time of this writing, the bill has yet to receive a vote.153 While this bill serves to bring the immigration definition of conviction more in line with the term as defined in the criminal legal system, it falls short by failing to expressly exclude pardons.
B. The Biden Administration Should Use Pardons as a Proxy for Prosecutorial Discretion and Construe the INA Narrowly so that Pardons Overcome Inadmissibility for All Underlying Convictions
Regardless of whether the INA is lawfully construed, the Biden administration should give deference to state pardons as a discretionary matter when considering whether to deport a noncitizen on the basis of their criminal history. Specifically, the Biden administration should instruct ICE to use prosecutorial discretion by declining to initiate removal proceedings, and terminating proceedings already underway, for individuals with sole pardoned offenses.154
As discussed in Part I, deportations based on criminal convictions have become much more common since the 1996 expansion of criminal removal grounds.155 As a result, this expansion, coupled with limited availability of discretionary relief, has fundamentally changed the nature of the immigration deportation system today.156 This entanglement of our criminal and immigration systems has undermined the effectiveness of both systems and has imported the defects and racial disparities of criminal justice systems into deportation proceedings.157 In recognition of this, governors have increased their use of pardons as a way of disentangling these two systems and retaining authority over the protection of their immigrant residents who get swept up in the criminal legal system.158 Through the use of prosecutorial discretion, the Biden administration should return to the pre-1996 era and end the use of deportation as a second punishment for criminal convictions for those who have been pardoned.159 The BIA should also utilize this discretion and reopen and terminate all cases based on state-pardoned convictions.
This is not a novel recommendation—ICE has and continues to exercise this discretion for pardoned individuals. For example, Colorado Governor Jared Polis pardoned Ingrid Encalada LaTorre, a Peruvian immigrant who sought sanctuary in a local church after facing removal due to a felony conviction.160 Subsequently, in November 2021, ICE granted Ms. Encalada LaTorre a one-year stay of removal so that she could work to reopen her immigration case.161 Colorado congressmembers have encouraged this result, with much success, by also reaching out to ICE to prevent the deportation of other pardoned individuals.162
In New York, then-Governor Cuomo pardoned Baba Sillah, an immigrant living in New York who faced removal related to misdemeanor convictions.163 On the same day that Governor Cuomo pardoned Mr. Sillah, ICE dropped its removal proceedings, seemingly out of its own discretion, and released Mr. Sillah from custody.164 Former Governor Cuomo also granted a pardon to Colin Absolam, who faced immediate deportation upon being paroled from prison.165 Governor Cuomo issued his pardon after an intensive review of Mr. Absolam’s record and a determination that “New York’s policy interests were better served by [Mr. Absolam’s] continued rehabilitation than by his removal based on the predicate state conviction.”166 Upon learning of the pardon, ICE removed Mr. Absolam from a plane, which was about to deport him back to his home country.167 Moreover, in the brief submitted by Governor Cuomo in Mr. Darboe’s case, the counsel for the Governor recounts numerous other immigrants who won relief from imminent removal by ICE after being issued a pardon by Governor Cuomo.168
The Biden Administration began its tenure by taking a cue from Obama-era reforms169 and encouraging wide-ranging use of prosecutorial discretion for many forms of immigration enforcement.170 For example, on January 20, 2021, DHS issued a memorandum directing the ICE Chief of Staff to review immigration enforcement policies and practices and to use the review as a guide for prioritization and prosecutorial discretion.171 Notably, the memo identified many different forms and stages of prosecutorial discretion that are at ICE’s disposal that could be applicable to people who receive gubernatorial pardons at many stages in their deportation proceedings.172 While the Biden administration’s specific use of enforcement priorities is now subject to federal litigation,173 this does not preclude immigration officials from exercising prosecutorial discretion in individual cases.174
By specifying that such discretion should be afforded to those with pardoned criminal convictions, this policy would implement clear, bright‑line prosecutorial discretion guidelines to exclude large categories of cases—which include, but do not necessarily have to be limited to, pardoned offenses—that do not justify enforcement and removal.
While critics of this proposal might caution against ICE issuing such blanket discretion, it is worth noting that exercising prosecutorial discretion does not have to foreclose an analysis of how criminal histories should factor into someone’s deportation proceedings. For example, Professor Jason A. Cade recommends that pardons can also serve as a “disproportionality rule of thumb,” which is almost like a proxy to prosecutorial discretion. 175 Given the involved application processes in which state pardons are addressed by governors,176 Cade emphasizes how pardons typically require a balancing test of the egregiousness of the underlying offense and the mitigating factors, which are heavily fact‑specific, that has already taken place independent a person’s deportation proceedings.177
Moreover, the use of prosecutorial discretion in the context of state pardons would address the federalism issues raised in Part II of this Note to better align federal and state priorities.178 As discussed in Part II, pardons reflect and implement the criminal system’s justice-seeking and rehabilitative goals of eliminating the stigma and barriers that result from a criminal conviction.179 Any federal government effort to deport a person on the basis of a pardoned conviction only continues to create conflict and tension with state sovereignty.180
While the aforementioned proposals would preclude relief for people who are removable for reasons beyond a pardoned conviction (such as people who are in proceedings based on an arrest or on another conviction), courts and the BIA can still take pardons into consideration when assessing the underlying facts of each individual case. To encourage this, the Biden Administration could also enact reforms giving immigration judges discretion—when making any removal decision—to consider pardon as part of a person’s rehabilitation, ties to their state, and the impact of potential deportation on their state community members.181
With regards to inadmissibility, the Biden Administration should direct immigration courts and the BIA to formalize a policy and practice of establishing that gubernatorial pardons overcome conviction-based inadmissibility.
While critics of this proposal might argue that pardoned individuals should instead go through the steps of seeking an inadmissibility waiver, as some are currently eligible to do for deportability through the Pardon Waiver provision, current waiver provisions for the various grounds of inadmissibility vary widely in standards and applicability.182 Moreover, seeking a waiver involves an unnecessary additional layer of review that undermines the gubernatorial pardon vetting process, with no guarantee that the waiver will ultimately be granted. For administrative ease, adjudicators should read the INA to mean that pardons overcome inadmissibility for all underlying convictions.
In conclusion, to resolve the constitutional and federalism issues presented in Part II of this Note, courts and administrative agencies should adopt a series of policies and practices that presume state pardons for all criminal offenses, signaling that a noncitizen’s encounter with the criminal system alone should not trigger grounds of deportability and inadmissibility.183
Conclusion
Upon his release from immigration detention, Mr. Darboe was finally able to hold his daughter after years of separation, and now he is home with his family.184 However, his fight to remain in the United States with his family continues, all based on a sole, unfounded, and now pardoned, conviction.185 As such, the full effect of state pardons is crucial for justice-involved immigrants facing deportation. As part of his initial campaign platform, President Biden promised to broadly use his clemency power to secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes.186 Despite reports of a long-term plan to use pardons to address racial injustice,187 the Biden Administration has so far fallen short on this promise.188 While President Biden’s anticipated use of increased pardons will also be very important in the immigration context, Biden’s messaging already signals a line‑drawing of the type of offenses that will likely be considered for those pardons.189 As such, it is tremendously important on the state level for governors to continue using their state pardon power towards all kinds of offenses, including controlled substance offenses, and that the full effects of those pardons are recognized for immigration purposes. With the widespread use of the pardon power, it will also be crucial for the INA to be amended so that all immigrants such as Mr. Darboe can receive the full effects of those pardons and no longer face the risk of deportation.