Introduction
On October 6, 2022, President Biden issued a proclamation pardoning most federal and Washington D.C. (D.C.) offenders—including lawful permanent residents—who have committed the offense of simple marijuana possession as defined by the federal Controlled Substance Act.[1] The impact of this proclamation is likely modest in light of the relatively small number of past federal and D.C. marijuana possession prosecutions. Nevertheless, it represents an important step towards a less punitive approach regarding minor drug offenses, and it may ultimately protect some lawfully present noncitizens from the severe sanction of deportation for engaging in an activity that most Americans do not think should be criminalized at all.[2]
Part I of this Essay highlights the core features of Biden’s exercise of the pardon power enumerated under Article II, Section 2, Clause 1 of the U.S. Constitution (Pardon Clause). It shows a historical precedent for presidents granting pardons to broad categories of federal offenders, including noncitizens and individuals whose identities are unknown.[3] When used this way, the pardon power serves a communitarian, forward-looking function. In this case, it does this by giving legal effect to a societal recalibration of what constitutes appropriate punishment for marijuana possession and a growing awareness of the racially disproportionate impact that arrests and prosecutions for this crime tend to produce. Put differently, this presidential action both reflects and embodies a shock to the criminal justice system—and, as we will see, to the deportation system as well. Moreover, the cause of this intervention lies, at least in part, in broader concerns about the excessive harshness and racially problematic aspects of both these legal systems.[4] The Biden pardon thus may foreshadow additional reforms, including future moves by legislative and executive branches at both federal and state levels under the banner of“decriminalization.”[5] Part II shifts attention to an important practical question about the Biden proclamation: Precisely whom does it benefit? As it turns out, the proclamation limits its pardon-granting reach for noncitizens. First, pardons for noncitizens are restricted to individuals who have already obtained permanent resident status as of October 6, 2022, the issuance date of the proclamation. As a result, many other noncitizens with longstanding and unambiguously lawful presence in the United States are denied the benefit of the proclamation. Among them are asylees and refugees, workers with only employment visas, and beneficiaries of various humanitarian visa programs that, due to statutorily imposed waiting periods or annual quotas, have permission to be in the United States and are generally on the pathway to an eventual green card.[6] Fencing out these persons from the benefits of the proclamation makes little sense, especially in light of its underlying aims of promoting fair treatment.
Second, the proclamation restricts which lawful permanent residents (LPRs) and naturalized citizens are eligible for pardon. Specifically, the proclamation indicates that it applies only to those persons who were “lawfully present” in the United States when they committed the underlying cannabis offense.[7] Presumably, President Biden imposed this restriction to avoid criticism that the administration was willing to advantage persons who, as noncitizens previously without authorization to be here, committed any crime. This carveout, however, gives no weight to the fact that the affected individuals are now legal residents or even naturalized U.S. citizens. Thus, a novel and problematic dichotomy is created between the group of LPRs(or naturalized citizens) that the administration believes deserving of clemency and those it does not, even though both groups committed the same now-pardon-worthy possessory offense and now have the same status.[8]
Part III then turns to the immigration implications of presidential pardons for marijuana offenses. This matter is marked by complexity because of ambiguities that lurk in the Immigration and Nationality Act (INA) concerning the impact of pardons on efforts to avoid deportation or gain lawful admission to the United States. Throughout most of the nation’s history, both gubernatorial and presidential pardons effectively negated the impact of the pardoned crime for immigration purposes.[9] Toward the end of the twentieth century, however, the U.S. Congress muddied the waters by amending key provisions of the INA. These amendments, in turn, led the Board of Immigration Appeals (BIA) to make two determinations that are relevant to Biden’s marijuana pardons. First, the BIA has declared that pardons negate the immigration-related effects of a conviction only for certain offense categories—specifically, those offenses that Congress expressed “shall not apply” if granted a full and unconditional pardon by the president or a governor.[0] As a result of this construction, the BIA has further held that because controlled substance offenses are among the various removal grounds triggered by criminal history that do not fall within those statutorily-enumerated offenses, pardons will not prevent any immigration consequences that attach to noncitizens convicted of that offense.[11] While the U.S. Supreme Court has not yet assessed these rulings, lower federal courts have deferred to both of these BIA interpretations of the INA.[12]
There is, however, a fly in the ointment: All of the immigrant pardon cases to reach the courts thus far have concerned state prosecutions and gubernatorial pardons, with the consequence that governing federal law has been given preemptive effect. Presidential pardons raise a specialized separation of powers problem in light of long-undisturbed Supreme Court precedent interpreting the Article II pardon power as immune from congressional constraint under Article I.[13] Although an LPR with a pardoned federal marijuana possession conviction facing deportation or trying to reenter the country after a trip abroad may well face a complex legal battle, they should ultimately win in light of the broad scope of the presidential pardon power.[14] But the constitutional question need not be fully resolved. I argue that there are good reasons to doubt Congress intended the BIA’s interpretation of the statute. A reasonable alternative construction would give effect to President Biden’s marijuana possession pardons while prudently avoiding the constitutional danger zone.
Part IV reflects on the significance of the Biden marijuana possession pardon program for noncitizens as a general matter. It offers, in particular, a set of considerations that policymakers should contemplate when adopting reformatory programs that impact immigration rules. All said, Biden’s marijuana possession amnesty represents a step in the right direction—one moving towards inclusion and justice-building. A step in the right direction, however, is only one step, and there remains a long way to go.
I. Key Features of the Biden Pardons
President Biden’s proclamation offers pardons to persons with federal and D.C. marijuana possession convictions. According to the Biden administration, this group is believed to include at least sixty-five hundred persons.[15] People with marijuana convictions prosecuted by D.C. law enforcement represent another significant group of beneficiaries.[16] Although, since 2015, the district has legalized adult possession of two ounces or less of marijuana,[17] the Biden pardons appear to cover all simple marijuana possession crimes, including possession of more than two ounces by adults and possession of any amount by persons under the age of eighteen.[18]
For those within its ambit, the initiative removes at least some of the civil disabilities that can flow from marijuana possession convictions, which otherwise can negatively impact a host of benefits and opportunities—including federal public housing, educational loan assistance, and many other benefits.[19] Further, because the proclamation covers persons who have possessed marijuana for personal use before October 6, 2022 but were never prosecuted for that conduct, the pardons provide the benefit of insulating such persons from future prosecution by federal and D.C. authorities.
The pardons also have an important signaling effect insofar as they underscore the value of countering the overly punitive criminalization of marijuana possession—conduct that a majority of Americans no longer believe should be subject to criminal sanction.[20] Indeed, nearly half of all states have legalized marijuana possession to some extent.[21] In this way, the Biden initiative follows a long tradition of leaders using their clemency powers to implement largely uncontroversial reforms.[22] At the same time, these pardons focus more generally on shortcomings of the criminal justice system, thus potentially drawing attention to other possibilities for broadscale legal reform. Consider, for example, former Ohio Governor Richard Celeste’s decision to grant clemency to domestic violence survivors whose crimes were related to their abuse.[23] Like President Biden’s proclamation, Celeste’s action reflected a recognition that the current penal system is too generalized and harsh towards certain categories of offenders.[24] In Part III,I will have more to say about the move-the-ball-forward role that Biden’s proclamation may play in the immigration context. The text of the Pardon Clause suggests few limitations on the president’s pardon authority and none regarding the numerical reach or necessity of individual identification. Presidents may pardon people for past offenses whose identities are unknown, and they may do so on a widespread basis. Historical examples of similar applications of this constitutional power are ample. The most recent large-scale precedent came in 1977 when President Carter issued a blanket amnesty to those who had evaded conscription for service in the Vietnam War.[25] Other presidents have likewise used their pardon powers in a widespread fashion.[26] Further, it is uncontroversial that noncitizens may be the beneficiaries of presidential pardons and amnesties.[27]
A final minor point bears mentioning. While initial reporting described the Biden pardons as contingent on an application, the proclamation is self executing. The opening language of the proclamation is clear in this regard: “Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to” the covered groups.[28] To be sure, the attorney general has developed an application for pardon certification.[29] But this certification process is designed to provide evidence of meeting the pardon’s terms to those who need it. Attempting to obtain the benefits of the pardon without official certification may or may not prove successful, depending on the context.[30] But the fundamental legal point is that everyone who meets the proclamation’s terms has already been pardoned, regardless of whether they choose to participate in the certification process.[31]
II. The Limited Scope of the Biden Proclamation
By its terms, the proclamation imposes two significant limitations concerning noncitizen offenders. First, it excludes from coverage any noncitizen who did not already enjoy lawful permanent resident status as of the date the proclamation was issued. As a result, the initiative does not forgive any federal marijuana possession convictions for noncitizens occupying many lawful statuses, some of which are long-term and even effectively permanent in nature. For example, the proclamation does not apply to asylees or refugees even though they have a durable status that provides a direct pathway to permanent residence.[32]
Similarly, many noncitizens are lawfully present in the United States with nonimmigrant employment visas, many of which are long-term, renewable, and contemplate eventual adjustment of status to permanent residence.[33] Also left out are noncitizens lawfully present in the United States with a variety of humanitarian visas that entail waiting periods before lawful permanent residence becomes available due to statutorily-imposed caps—such as Special Immigrant Juveniles,[34] so-called “U visa” and “T visa” nonimmigrants,[35] and Violence Against Women Act self-petitioners.[36]
The other limit imposed by the proclamation is particularly controversial. In structuring the amnesty, President Biden distinguished among LPRs, and, potentially, among naturalized U.S. citizens. He did so by specifying that only persons who possessed marijuana while lawfully present in the United States are included in the pardon’s reach, thus excluding from coverage all LPRs and naturalized citizens who engaged in the same conduct during a prior period in which they were not lawfully present.[37] Essentially, the proclamation imposes an attribution of moral condemnation based solely on prior unauthorized presence at the time of the relevant act.[38]
The problematic character of this distinction can be easily illustrated. Consider two similarly situated LPRs, both of whom entered the United States lawfully with B-2 tourist visas, overstayed the authorized periods for the visas, and then eventually married U.S. citizens and adjusted status to become LPRs as beneficiaries of immediate relative family petitions. Imagine that one of these noncitizens, Amy, possessed marijuana on the final day of the period authorized by the terms of her tourist visa. In contrast, Brittney possessed marijuana on the first day after the expiration of the period authorized by the visa. Pursuant to the proclamation, only Amy has been pardoned. The same result would be obtained even if both had taken the additional step of naturalizing to U.S. citizenship: Amy would be pardoned, while Brittney would remain excluded.
Is Brittney less deserving of forgiveness merely because the now-accepted conduct[39] occurred during a prior period of unlawful presence? To be sure, this is somewhat of an academic point because, as discussed further below, inadmissibility rules make adjustments to lawful permanent resident status challenging where the noncitizen has engaged in any controlled substance offense.[40] However, a discretionary statutory waiver that can overcome the controlled substance ground of inadmissibility is potentially available to noncitizens seeking adjustment of status if the offense involved thirty grams or less of marijuana,[41] which is an amount the federal government has been willing to prosecute.[42] But immigration outcomes are not the only benefit that flows from the pardons, and the larger point remains: President Biden’s pardon participates in a rhetorical division of “good” immigrants from “bad” ones.[43] Presumably, President Biden made this move to preempt criticism that the pardons reward undocumented noncitizens engaging in criminal activity,[44] even though prior or present unlawful presence is not a criminal offense.[45] But by discriminating among LPRs or naturalized U.S. citizens based solely on whether there was authorization for their presence at the time the relevant conduct occurred, President Biden is perpetuating the “good” versus “bad” immigrant dichotomy in a wholly novel way.[46]
III. The Constitutional Questions Raised By Controlled Substance Offense Pardons in the Immigration Context
Casual observers would be forgiven for assuming that pardoned convictions no longer carry collateral immigration consequences for the noncitizen beneficiaries. Whether issued by the president or a state governor, a full and unconditional pardon reflects a final judgment by a sovereign government’s chief executive that a conviction under that sovereign’s law no longer stands.[47] In fact, however, adjudicators interpreting the INA have tightly constrained the effect of pardons in the immigration context. Thus far, federal courts that have considered the issue have deferred to the agency’s position. While the relevant precedents concern state-level pardons, the statutory provision the agency has interpreted does not easily allow for a federal carveout. This sets the stage for a clash between Congress’s plenary power over immigration rules—in this case, rules inferred through statutory construction—and the president’s plenary pardon power, as enumerated in the U.S. Constitution and interpreted by the Supreme Court and other federal courts.
For most of the twentieth century, pardons operated to eliminate any immigration disabilities resulting from a criminal conviction.[48] TheB IA observed in one of many representative cases: “As long as there is a full and unconditional pardon granted by the President or by a Governor of a State covering the crime which forms the ground of deportability, whether in exclusion or in expulsion, the immunizing feature of the Pardon Clause applies, and such a crime no longer forms a basis for deportability.”[49] In 1990 and again in 1996, however, Congress significantly restructured the INA.[50] These revisions, which remain in effect, provide the basis for the BIA’s now-operative pronouncement that pardons only function to remove immigration disabilities in particular circumstances.
Congress has dealt with noncitizens with a criminal history by putting in place (1) bars to admission, (2) grounds for deportation, and (3) various exceptions, waivers, and relief from a finding of inadmissibility or deportation on the basis of specified criteria.[51] A key provision of the current INA broadly provides for the deportation of persons convicted of crimes.[52] It also specifies, however, that four removal categories triggered by criminal history—crimes involving moral turpitude, multiple criminal convictions, aggravated felonies, and high-speed flight from an immigration checkpoint—will“not apply”where a noncitizen “subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.”[53] With respect to the other crime-based grounds of deportation specified in the INA, however, the statute makes no mention of the effect of a pardon.[54] Controlled substance offenses are among those other unmentioned categories.[55]
When faced with situations involving non citizens whose criminal history falls within removal grounds outside of the four enumerated categories of offenses, the BIA has applied the expressio unius est exclusio alterius canon of statutory interpretation to determine that the conviction still triggers immigration consequences even in the event of a full pardon.[56] In Matter of Suh, for example, the BIA considered the effect of a pardon for a noncitizen’s state conviction for sexual battery of a minor.[57] The BIA found the pardon did preclude the aggravated felony ground of removal lodged by the government because, as explained, the BIA found that INA specifically provides for this result.[58] However, the BIA also held that the noncitizen remained deportable under the separate domestic violence category also charged because, unlike aggravated felonies, such offenses are not explicitly exempted by pardons in the INA.[59] The BIA determined that “where the statute so clearly states which removal grounds” may be eliminated by a pardon, there can be no pardon-based “implicit waiver” on other grounds.[60] Other administrative rulings, although unpublished and therefore nonprecedential, have endorsed this same analysis.[61] Thus far, lower federal courts have deferred to the agency's reading of the relevant statutes.[62]
This expressio unius approach to the statute produces bizarre results. A noncitizen pardoned for a conviction for sexual battery of a minor could no longer be deported pursuant to the INA’s aggravated felony or crimes involving moral turpitude provisions, both of which are categories that an offense of this nature would implicate.[63] Nevertheless, as the above discussion of Matter of Suh illustrates, that same noncitizen would remain deportable under the more general “domestic violence” category.[64] Likewise, a noncitizen convicted of a pardoned marijuana possession offense can still be deported pursuant to the general controlled substance ground, but if they instead engaged in an offense charged as drug trafficking aggravated felony,[65] a pardon would prevent their deportation (so long as the controlled substance ground is not also charged). The BIA’s rulings confirm that these arbitrary results are not a mere theoretical possibility.[66]
According to the BIA’s prevailing view of the statute, the effect that will be given to a pardon thus turns not on the nature of the underlying offense, but on immigration prosecutors’ decisions about which of the several applicable removal grounds to list in the charging instrument it files with the immigration court.[67] Could Congress really have intended a scheme in which rank-and-file agency officials have ultimate discretion—through nothing more than formal charging decisions—to determine whether a sovereign pardon will be given effect? I will return to that question shortly. But first, I turn to another related context in which the BIAhas addressed the significance of pardons: inadmissibility.
Regarding inadmissibility (in contrast to deportation), the INA does not address the subject of pardons.[68] The inadmissibility grounds apply to the following noncitizen categories: (1) those attempting to gain entry or reentry to the United States, whether through a consulate or at a port of entry, including some lawful residents who temporarily sojourn abroad if certain circumstances are met;[69] (2) those who are physically present in the country without having been lawfully admitted following inspection; and (3) those seeking to adjust status to lawful permanent residence or a different visa category.[70]
As in the historical deportation context, the published decisions of the BIA have long adhered to the rule that pardons completely avert inadmissibility grounds.[71] While these decisions predate the above-discussed statutory revisions that led the BIA to change course in the deportation context, they remain good law.[72] To be sure, two lower federal courts have concluded, through the application of the expressio unius canon, that the current INA reflects a congressional desire to limit the effect of pardons only to deportation proceedings, such that they are given no effect whatsoever in the inadmissibility context.[73] These decisions, however, failed to grapple with any of the still-precedential BIA case law to the contrary. Indeed, they appear to have missed these cases altogether.
In theory, pardons’ effectiveness with respect to inadmissibility can be distinguished from the deportation context based on what is required to trigger the relevant immigration penalty. Unlike in the deportation categories, which generally require a conviction before adverse action can be taken, noncitizens seeking entry or admission can be excluded or removed simply based on the commission of a crime—established, for example, by way of the applicant’s admission or an administrative finding of the relevant criminal conduct.[74] Many authorities hold that while pardons preclude penalties that otherwise would follow from the relevant conviction, they do not erase the underlying conduct or the fact of a prior conviction, and accordingly, legal disabilities attendant to those factors may still follow.[75] But the two federal courts holding pardons ineffective in the admission context did not rely on this distinction;[76] rather, as mentioned, those holdings explicitly rested on an extension of the statutory construction analysis employed in the deportation context.
Additionally, the statutory analysis in those two cases is decidedly unpersuasive. If the INA were completely silent as to the effect of pardons, it would be understood that a full and unconditional pardon defeats any immigration consequences that would otherwise follow the conviction. That was the practice in immigration proceedings for nearly a century, and, indeed, that is the general understanding of what follows from a pardon in any context. Even if Congress intended to limit the effectiveness of pardons to avert deportation by iterating the four exclusive categories for which that particular consequence could be waived, it does not necessarily follow that Congress also wanted to upset the default understanding of pardons to overcome all inadmissibility grounds.[77] The language of the relevant provision suggests that Congress intended pardons to ensure the enumerated crime-based categories “shall not apply” wherever they appear in the immigration context.[78]
Indeed, that is precisely how the US.Department of State (DOS) interpreted the meaning of the pardon section in the INA. The DOS, also charged with interpreting the INA for consular visa processing, has explicitly directed that visa applicants shall not be considered inadmissible for crimes involving moral turpitude or multiple criminal convictions grounded on an offense (or offenses) that a governor or the president has fully and unconditionally pardoned.[79] The DOS does not address the effect of a pardon on aggravated felonies and high-speed flight from an immigration checkpoint because they are not grounds for inadmissibility. The DOS applies the INA’s pardon waiver provision at least to the extent applicable in the deportation context, demonstrating that pardons can be effective outside deportation proceedings. Moreover, the BIA has often found that pardons remove statutory bars in obtaining discretionary relief from removal.[80] In sum, the two lower court decisions holding pardons wholly inapplicable beyond deportation are out of step with the rulings and practice of the BIA and DOS, and they should be regarded as unpersuasive outliers.
In any event, all the relevant precedent that imposes limits on the effect of pardons concern state-level pardons. To be sure, federal agency actions that diminish state police powers raise constitutional concerns. As I have argued elsewhere, the BIA and federal courts have been too quick to disregard states’ sovereign authority with respect to the continuing validity of convictions generated within that state’s criminal justice system.[81] Federalism alarms should start blaring when federal agencies fail to honor state executive actions, including pardons undertaken to correct mistakes or exercise mercy toward persons convicted of crimes within that state. While it may ultimately be within Congress’s power to override traditional state police powers in this way, courts should require significantly more legislative clarity before concluding that the BIAs interpretation reflects Congress's Intent. In contrast, President Biden’s cannabis amnesty constitutes a permissible action by the federal government, thus bringing foundational separation of powers principles into play. The question arises whether Congress, consistent with the Constitution, can—as the BIA’s actions suggest it believes Congress wishes to do—strip the effect of the presidential pardon in immigration proceedings?[82] Whatever the final resolution of challenges to the validity of allowing an immigration agency to override the effect of state pardons, federal executive clemency occupies a different kind of constitutional space—one informed by a specialized body of judicial precedents.[83]
As executive clemency is an enumerated power,“its limitations, if any, must be found in the Constitution itself.”[84] While the Constitution constrains the pardon power by covering only “[o]ffenses against the United States” and by specifically exempting “cases of impeachment,” for example, the president’s pardon authority is otherwise exceptionally broad and expresses no limitations regarding Congress’s legislative powers.[85] Indeed, in contrast to other specific powers allocated to the president in the Constitution, the pardon authority does not require any Congressional approval.[86] As Sam Morison has observed, “the Pardon Clause is one of the Constitution’s proverbial bright line rules, in which the text itself expressly strikes the balance of power between the political branches.”[87] The president’s clemency authority is understood as a constitutionally-guaranteed executive “check and balance” against Congress’s legislative power to define crimes and penalties and the judiciary’s power to apply those laws.[88]
Supreme Court rulings interpreting the Pardon Clause essentially exempt the president’s power to pardon from Congressional interference. In 1886, the Court declared in Ex parte Garland that Congress “can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”[89] In another seminal case, United States v. Padelford,[90] the Court held that President Lincoln’s pardon “relieved [Padelford] from any penalty which he might have incurred,” including civil forfeiture of property.[91] Soon afterward, the Court rebuffed Congress’s attempt to restrict the effect of a presidential pardon, admonishing that “the legislature cannot change the effect of such a pardon any more than the executive can change a law.”[92]
In subsequent cases, the Court continued to unequivocally confirm that “the very essence of a pardon [is to] release the offender from the consequences of [their] offense”[93] and that Congress cannot limit or interfere with the president’s absolute pardon power.[94] In Schick v. Reed,[95] for example, the Court confronted a situation in which president Dwight Eisenhower commuted Maurice Schick’s death sentence to life in prison, but with the explicit condition that Schick would remain ineligible for parole, which Schick agreed to. However, the relevant criminal statute at the time allowed only two possible punishments for Schick’s conviction: the death penalty or life imprisonment with the possibility of parole. Thus, Eisenhower’s pardon directly conflicted with the specific consequences Congress expressly wanted a conviction of this nature to have. Nevertheless, when Schick challenged the condition after twenty years of incarceration (by which time, without the condition, he would have been eligible for parole consideration), the Court readily affirmed the pardon, confirming that Congress cannot in any way limit the president’s pardon authority.[96]
While most modern cases hold that collateral consequences may still follow from the commission of a crime even if later pardoned, the Supreme Court and other federal courts have held fast to the unbroken principle that pardons prevent the direct imposition of penalties or disabilities based on the now-pardoned conviction.[97] Courts have concluded that:
[A]ny deprivation of a person’s basic civil rights . . . on account of a federal conviction would constitute a punishment. If the conviction were pardoned, as it was here, such attempted punishment would constitute a restriction on the legitimate, constitutional power of the President to pardon an offense against the United States and would be void as circumscribing and nullifying that power.[98]
Deportation or exclusion from the United States on the basis of a conviction constitutes the sort of penalties precluded by a full and unconditional pardon.[99] The Supreme Court has unequivocally recognized “that deportation is a particularly severe ‘penalty.’”[100] Indeed, in Padilla v. Kentucky, the Court found the penalty of deportation so “integral [a] part,” “intimately related,” “enmeshed,” and “most difficult to divorce” from a conviction that it held the Sixth Amendment right to effective assistance of counsel must include advice about the immigration consequences of a guilty plea.[101] Allowing Congress to legislate banishment of a noncitizen on the basis of a pardoned conviction unconstitutionally “modifie[s], abridge[s], or diminishe[s]”[102] the president’s Article II clemency power. That presidents historically have exercised the pardon robustly to avert deportation only reinforces this conclusion.[103]
Although the court has often affirmed Congress’s plenary authority over immigration rules, the president also occupies a central role in immigration policy making.[104] Indeed, the interbranch relationship between Congress and the executive branch has been described as one involving “co-principals.”[105] Thus, powers validly exercised by the president in the immigration sphere are not easily swept away by the wide latitude courts generally afford Congress due to the special political sensitivities of immigration regulation—particularly when the president’s authority stems from the Constitution. This conclusion is supported by INS v. Chadha,[106] in which the Court held that an INA provision authorizing either chamber of Congress to override an administrative officer’s grant of discretionary relief from deportation violated the Constitution’s requirements for law-making, including bicameralism and presentment to the president, thereby running afoul of the separation of powers principles.[107] Although Congress sought to defend the law based on its broad power over immigration related matters,[108] the Court was unimpressed. The Court tersely observed that while Congress has plenary authority over immigration policy, it must choose “a constitutionally permissible means of implementing that power.”[109]
While Chadha turned specifically on the Constitution’s textual requirements of bicameralism and presentment, the decision stands for the proposition that deference to congressional immigration power is inappropriate where the exercise of that power abridges the decisionmaking structure set forth in the Constitution.[110] The “plenary power of federal executive clemency”[111]—as provided in the Constitution and interpreted by the Supreme Court over two centuries—comprises another constitutionally-structured limit on legislated immigration consequences. Ultimately, then, the separation of powers conflict between the BIA’s interpretation of the effectiveness of pardons for controlled substance convictions on the one hand, and the president’s exercise of his Article II clemency powers on the other, should be resolved in favor of the president.[112]
Among the oldest tricks in Congress’s book are (1) to include a statutory provision ostensibly authorizing the president to issue pardons in a certain context while expressing or implying constraints on its use, or(2)to subsequently amend the relevant authorizing statutory provisions such that the clemency authority purportedly becomes eliminated. TheCourt haslong since proclaimed the ineffectiveness of these maneuvers.[113] Thus, even if Congress clearly wished to do so, it cannot constitutionally limit a presidential pardon from averting conviction-based federal penalties—especially penalties as severe as deportation.[114]
With that said, courts need not necessarily reach that ultimate constitutional question. Rather, applying an appropriate rule of construction would allow courts to interpret the relevant statutory provision in an alternative way, which both gives effect to President Biden’s pardons and avoids the complex constitutional questions raised by the BIA’s approach.[115] The Supreme Court has, on occasion, employed a separation of powers interpretive canon that guards against congressional encroachment upon core executive powers.[116] More generally, commonly invoked clarity rules allow courts to avoid statutory constructions that transgress constitutional values absent a clear expression of intent from Congress.[117]
The Supreme Court has relied on rules of clarity when construing the meaning of the INA.[118] In INS v. St. Cyr,[119] for example, the Court determined that an amendment eliminating a form of discretionary relief from deportation should not apply to conduct occurring before its enactment because Congress did not indicate that it “specifically considered the potential unfairness that retroactive application would produce.”[120] The Court supported reliance on various interpretive rules of clarity in St. Cyr by observing that “because noncitizens cannot vote, they are particularly vulnerable to adverse legislation,” foregrounding the constitutional concerns arising when a law targets an “unpopular group.”[121]
In Zadvydas v. Davis,[122] the Court relied on a clarity rule commonly referred to as the “doctrine of constitutional doubt”[123] to read the INA not to permit the indefinite detention of noncitizens subject to removal orders who had no country willing to accept them.[124] In so doing, the Court rejected the most straightforward reading of the statute—which suggested Congress did authorize indefinite detention—in favor of a different interpretation that avoided the “constitutional danger zone.”[125] There are many other instances in which the Court has employed rules of clarity to protect “unpopular groups” or fundamental values and to defer challenging constitutional questions.[126]
Even when a statute is constitutionally dubious, “courts may choose only between reasonably available interpretations of a text.”[127] But “where an alternative interpretation of the statute is fairly possible,’” courts“are obligated to construe the statute to avoid” the constitutional problems.[128] Applying these principles to the INA, courts should conclude that the statute is plausibly read not to evince congressional intent to override the applicability of presidential pardons in immigration.
It bears repeating that the BIA has only inferred congressional intent through reliance on a cannon of interpretation. The current INA does not explicitly provide that pardons will not be effective for any categories of deportation or any grounds of inadmissibility.[129] In other words, Congress has not directly stated a desire to constrain the president’s constitutional authority to remove conviction-based immigration penalties.
Furthermore, several factors counsel against application of the expressio unius est exlusio altererius canon in this situation. First, there are historical reasons to conclude that Congress has not had the expressio unius canon in mind when amending the pardon provision of the statute. The version of the INA in effect from 1956 to 1990 directly mandated that pardons would not prevent removal on the basis of drug offense convictions, confirming that Congress knows how to make explicit its intention to override executive clemency authority when it wishes to do so.[130] Moreover, because this prior provision in the statute overlapped with a period in which the INA specifically listed other deportation categories for which pardons would act as a safety against removal, it makes little sense to think that Congress wanted immigration judges or the BIA to rely on interpretive principles to exempt drug offenses from executive clemency.
Second, the INA is a clunky, byzantine statute that reflects a century of legislative amendment, compromise, and sometimes little-considered revisions with significant consequences.[131] The legislative record for the current INA does not reflect any substantive engagement with the pardon provisions.[132] Thus, the BIA’s inference that Congress intended pardons to operate only for the four specifically-enumerated categories is not bolstered by any extrinsic evidence of intent,such as sponsor statements, floor debates, or the like.
Third, the BIA’s interpretation of the INA leads to absurd and arbitrary results. Why would Congress want the most serious categories of crime-based removals—such as aggravated felonies involving drug or firearms trafficking, rape, sexual abuse of a minor, or even murder—to be averted by pardons while exempting less serious offenses like drug or firearms possession, or domestic violence, from a pardon’s reach? While interpretive rules of thumb for divining legislative intent have value, their usefulness evaporates when their application produces perverse consequences.[133] Indeed, even where the interpretation is based on the statute’s plain language, the Court has been willing to adopt less natural statutory readings to avoid illogical results.[134]
Fourth, the BIA’s statutory construction essentially delegates authority to ground-level prosecutors in the Department of Homeland Security (DHS) to determine whether a pardon will prevent removal. That result obtains in part because the INA’s crime-based deportation grounds have proliferated to such an extent that most criminal offenses trigger more than one possible removal provision; in particular, many crimes defined as aggravated felonies in the INA also appear elsewhere in the statute as stand-alone grounds for deportation.[135] Under this scheme, rank-and-file DHS attorneys can determine whether a presidential pardon will benefit a noncitizen with a drug trafficking conviction through its decision to charge the corresponding aggravated felony removal ground or the more general controlled substance ground (or both).[136] The BIA’s interpretation of the statute thus introduces a significant potential for arbitrariness regarding whether a presidential pardon will provide relief from deportation.
Indeed, in Judulang v. Holder,[137] a unanimous Supreme Court found a somewhat analogous situation problematic, in which the BIA had adopted a policy that made the outcome of a noncitizen’s eligibility for a now-repealed statutory relief measure “rest on the happenstance of an immigration official’s charging discretion.”[138] In the pardon context, as in Judulang, “everything hangs on the fortuity of an individual official’s decision. [A noncitizen] appearing before one official may suffer deportation; an identically situated [noncitizen] appearing before another may gain the right to stay in this country.”[139] The Judulang Court held that the BIA’s approach was arbitrary and capricious, violating the Administrative Procedures Act.[140] Regarding pardons, the similar arbitrariness facilitated by the prevailing scheme provides an additional basis for courts to be very wary of the BIA’s statutory interpretation.
The foregoing discussion reveals the highly problematic aspects of the BIA’s reading of the INA, illustrating why the expressio unius canon is sometimes “a dubious basis for ascertaining statutory meaning or legislative preferences.”[141] Fortunately, a different interpretation of the INA is ready at hand: Congress wanted to be sure that pardons would have an effect in deportation proceedings—even when the most serious removal grounds were lodged, and regardless of shifting administrative priority preferences—without altering immigration law’s past treatment of less serious criminal offenses in any way. For example, deportation based on any of the aggravated felony grounds triggers significant consequences, foreclosing discretionary relief or the possibility of a lawful return to the United States in the future.[142] As such, an executive pardon for an aggravated felony crime constitutes the last fail safe against permanent banishment, with no possibility for consideration of counterbalancing equities. It makes good sense that Congress would want to be sure that immigration law administrators, in their zeal to pursue noncitizens believed to have committed serious crimes, would not turn a blind eye to an executive pardon.[143] This aligns with the historical safety-valve function of pardons.[144]
For all these reasons, the BIA’s approach to pardons in immigration is less than sound. At the same time, another statutory reading is plausible, and that alternative construction prudently allows courts to sidestep the need to strike down a federal law as an unconstitutional curtailment of the president’s pardon power.[145] Notably, applying a clarity rule of interpretation in this context does not subvert Congress’s will. Rather, it merely ensures that constitutional norms are preserved while Congress engages in heightened deliberation concerning whether to clearly express a desire to overcome those norms.[146] Eventually, the constitutional question might need to be reached. But until then, the INA should be read to ensure that the president’s constitutional clemency powers are not tossed aside via doubtful agency construction of a statutory provision lacking sufficient clarity.
IV. Recommendations
As explained in Part III, federal courts considering the relevant constitutional principles implicated by the BIA’s interpretation of the role of pardons in immigration should determine that President Biden’s marijuana possession pardons eliminate any conviction-based penalties, including deportation. Granted, pardons only go a little way toward ameliorating the widespread immigration consequences that follow minor crimes. Congress would do well to restore humanity and proportionality to the immigration code to a far greater degree. The root problem for noncitizens with a cannabis conviction lies in the late-twentieth-century proliferation of grounds for removal and exclusion based on criminal history, along with the simultaneous constriction of discretionary grounds for relief that injects more opportunities to recognize hardship, family and community ties, rehabilitation, and other mitigating factors.[147]
And yet we live in a time of legislative polarization and gridlock.[148] Thus, at least for now, executive action remains the most likely source of positive reforms.[149] The president and state governors thus should consider issuing pardons modeled on the marijuana possession amnesty. Indeed, President Biden should continue this process by expanding the pardon to:(1) other categories of lawfully present noncitizens, and (2) LPRs (and naturalized citizens) whose offenses occurred during prior periods of unlawful presence.
Reforms of this kind should not end with the presidential proclamation. In fact, pardons for marijuana possession are more impactful at the state level because there are many more state convictions than federal convictions.[150] Moreover, there is a growing interest among governors in issuing amnesties of this kind.[151] That said, currently operative administrative interpretations limit the effectiveness of gubernatorial pardons to the four enumerated crime-based removal categories. Accordingly, states that want to help ensure their noncitizen residents avoid the draconian sanction of deportation based on minor drug charges may have to look to legislation such as legalizing marijuana or creating other criminal justice system mechanisms that avoid the imposition of controlled substance convictions altogether.[152]
There is another pathway to reform as well, which looks to ameliorative action by immigration enforcement officials. This opportunity exists because the structure of immigration law allows for ample discretion regarding arrest and prosecution decision-making.[153] Accordingly, notwithstanding otherwise operative rules regarding the effects of executive pardons, immigration enforcement officials can and should take account of full and unconditional pardons, whether bestowed by the president or a state governor, as evidence that removal on the basis of the pardoned conduct would impose too severe a consequence, at least in the absence of demonstrable concerns about ongoing public safety issues.[154] This “disproportionality rule of thumb” is particularly salient when imposing severe consequences like deportation based on a low level drug possession offense.[155] In short, the DHS has the authority to—and should—direct frontline decision makers to give weight to executive pardons of criminal behavior as part of the overall assessment of a case, even if that pardon does not automatically eliminate the basis for an adverse action.[156]
Conclusion
In the immigration context, president Biden’s marijuana possession pardons have given rise to a new and complex set of issues concerning statutory interpretation and constitutional separation of powers law. Ultimately, courts should read the INA not to preclude the pardons’ effectiveness in removal proceedings. But even before the immigration law issues are ultimately resolved, the proclamation will have significant consequences. It will benefit the noncitizens and naturalized citizens who were lawfully present in the United States when the act of possession occurred by eliminating direct criminal sanctions and some civil penalties. The proclamation has an expressive value too. It signals that there is an unacceptable callousness and inhumanity in associating severe consequences with low-level offenses.[157] The amnesty gives voice to the idea that “our society is a strong and confident one” and that we are a “reflective rather than dogmatic” people.[158] These underlying principles, given expression in the Biden amnesty program, offer hope that additional reforms, sensitive to the interests of individual noncitizens who have positive and continuing relationship with the nation, will take hold in the future.
[pdf-embedder url="https://www.uclalawreview.org/wp-content/uploads/securepdfs/2023/08/Cade-Final-Contract-Proof-2.pdf" title="Cade Final Contract Proof 2"][1] . See Presidential Proclamation 10467 Granting Pardon for the Offense of Simple Possession of Marijuana, 2022 Daily Comp. Pres. Doc. 884 (Oct. 6, 2022) [hereinafter Proclamation]; Presidential Statement on Marijuana Reform, 2022 Daily Comp. Pres. Doc. 883 (Oct. 6, 2022).
[2] . Support for Legal Marijuana Holds at Record High of 68%, Gallup (Nov. 4, 2021), https://news.gallup.com/poll/356939/support-legal-marijuana-holds-record-high.aspx [https://perma.cc/MWT4-7CVY].
[3] . See infra text accompanying notes 23–27.
[4] . See, e.g., Carol S. Steiker,Tempering or Tampering? Mercy and the Administration of Criminal Justice, in Forgiveness, Mercy, and Clemency 16, 19 (Austin Sarat & Nasser Hussain, eds., 2007); Nancy Morawetz, Rethinking Drug Inadmissibility, 50 Wm. & Mary L. Rev. 163, 180–89 (2008).
[5] . See generally Approaches to Decriminalizing Drug Use & Possession, Drug Pol’y All.< (Feb. 2015), https://www.unodc.org/documents/ungass2016/Contributions/Civil/ DrugPolicy Alliance/DPA_Fact_Sheet_Approaches_to_Decriminalization_Feb2015_1.pdf, [https://perma.cc/D8KG-TLCQ]. [6] . See infra text accompanying notes 32–36.
[7] . Proclamation, supra note 1.
[8] . See infra text accompanying notes 32–36.
[9] . See Jason A. Cade, Deporting the Pardoned, 46 U.C. Davis L. Rev. 355, 366–79 (2012) (discussing the implications of gubernatorial pardons in the immigration context from 1917 to present day).
[10] . See 8 U.S.C. § 1227(a)(2)(A)(vi) (indicating that full and unconditional pardons by the president or by a state governor would remove the consequences of convictions for the categories of crimes of moral turpitude, multiple criminal convictions, aggravated felony, or high-speed flight).
[11] . See infra text accompanying notes 56–62.
[12] . See infra Part III.
[13] . See infra text accompanying notes 84–99.
[14] . I have also argued that courts have gotten this wrong with respect to the contest between state pardons and the BIA’s interpretation of the Immigration and Nationality Act (INA), by ignoring federalism concerns. See Cade, supra note 9.
[15] . Christina Wilkie, Biden Pardons Thousands of People Convicted of Marijuana Possession, Orders Review of Federal Pot Laws, CNBC (Oct. 6, 2022), https://www.cnbc.com/ 2022/10/06/biden-to-pardon-all-prior-federal-offenses-of-simple-marijuana-possession- .html [https://perma.cc/EZ2B-TXKF].
[16] . See generally Karina Elwood, Biden Announced Mass Marijuana Pardons. What Does That Mean for D.C.?Wash. Post (Oct. 7, 2022, 12:56 PM), https://www.washingtonpost.com/dc- md-va/2022/10/07/marijuana-pardons-biden-dc/ [https://perma.cc/QNV2-HYVG].
[17] . While there were at least thirty-five hundred D.C. marijuana arrests in 2012, there were only 323 in 2015 following legalization. See AG Racine Statement on White House Announcement of Pardons for Federal & DC Simple Possession of Marijuana Convictions, Off. of Att’y Gen. for D.C. (Oct. 6, 2022), https://oag.dc.gov/release/ag-racine-statement- white-house-announcement [https://perma.cc/E7G3-PQSM].
[18] . Id. Attorney General Racine stated:
Under that measure, an individual 21 or older can possess up to two ounces of marijuana for personal use, consume marijuana on private property, grow up to six cannabis plants (with three or fewer being mature) in their personal residence, and can transfer without payment—but not sell—up to one ounce of marijuana to another person 21 years of age or older.
Id.
[19] . See, e.g., 24 C.F.R. § 982.553(a)(1)(i) (2022) (imposing a minimum three-year bar on public housing for persons with a drug offense conviction); 20 U.S.C. § 1091(r)(1) (disqualifying students from receiving federal aid if convicted of drug possession crimes under certain circumstances); 21 U.S.C. § 862(a) (establishing a permanent ban on receipt of TANF or SNAP for any controlled substance violation); See generally Margaret Colgate Love, Jenny Robert, & Wayne A. Logan, Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (2021–2022 ed.) (2022). As I explain in Part III, courts ultimately should determine that the Biden pardons prevent immigration-related consequences for noncitizens with federal marijuana possession convictions, either by employing clear statement rules to interpret the statute as giving presidential pardons preclusive effect or by confronting the constitutional question directly.
[20] . Support for Legal Marijuana Holds at Record High of 68%, supra note 2.
[21] . Marijuana Legality by State, DISA (Apr. 2023), https://disa.com/maps/marijuana-legality-by-state [https://perma.cc/E7UW-HWLT].
[22] . Daniel T. Kobil, Should Mercy Have a Place in Clemency Decisions? in Forgiveness, Mercy, and Clemency, 36, 49 (Austin Sarat & Nasser Hussain, eds., 2007).
[23] . Richard F. Celeste, Executive Clemency: One Executive’s Real Life Decisions, 31 Cap. U. L. Rev. 139, 140–41 (2003).
[24] . Id. at 141–42 (“I believed that we must live in a society that reflects our best instincts, a society that nurtures our higher nature.”).
[25] . President Jimmy Carter, Proclamation No. 4483: Granting Pardons for Violation of the Selective Service Act, 91 Stat. 1719 (Jan. 21, 1977).
[26] . Presidents employing the pardon power to extend an olive branch to political opponents or for other reasons of “peace” include George Washington, Abraham Lincoln, Andrew Johnson, John Adams, Thomas Jefferson, Andrew Jackson, and James Madison. See Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest 51–52 (1989); Jeffrey Crouch, The Presidential Pardon Power 32–45 (2009). Like these “peace pardons,” the marijuana pardons have a generative aspect in that they work towards societal reconciliation and inclusion.
[27] . See, e.g., Carlisle v. United States, 83 U.S. 147, 153, 155–56 (1872) (holding pardons valid and effective for rebel noncitizens who otherwise fell within the terms of President Johnson’s Dec. 25, 1868, amnesty proclamation); Matter of Rahman, 16 I. & N. Dec. 579, 580 (B.I.A. 1978) (holding that reentering lawful residents are within the terms of President Carter’s 1977 pardons to Vietnam War draft resisters, which specifically included noncitizens excludable for violating the Military Selective Service Act). See also Samuel T. Morison, Presidential Pardons, and Immigration Law, 6 Stan. J. C.R. & C.L. 253, 261 n.32 (noting that “the annual reports of the Office of the Pardon Attorney, which have sporadically tracked the number of immigration-related grants, record that from 1928 to 1953, the President granted at least 192 pardons to avert deportation” and that “[f]rom 1962 to 1993, the rules specifically provided that the post-conviction waiting period could be waived ‘in cases of aliens seeking a pardon to avert deportation’”); Staci Zaretsky, Former Skadden Associate Taken Down In Mueller Probe Gets Pardoned By Trump, Above the Law (Dec. 23, 2020, 11:42 AM), https://abovethelaw.com/2020/12/former-skadden-associate-taken-down-in-mueller- probe-gets-pardoned-by-trump/ [https://perma.cc/NRW9-3K6A] (reporting on President Donald Trump’s pardon of deported Dutch lawyer Alex van der Zwaan); Trump Pardons Israeli Officer who Enlisted Spy Pollard, Associated Press (Jan. 20, 2021), https://apnews.com/article/donald-trump-israel-jonathan-pollard-benjamin-netanyahu- united-states-c3d2e46029b23e7bdaa5bda6ec878247 [https://perma.cc/D94C-QG7D] (reporting on President Trump’s pardon of Israeli operative Aviem Sella, a noncitizen who fled to Israel to avoid espionage prosecutions).
[28] . Proclamation, supra note 1. See also President Jimmy Carter, Proclamation No. 4483 supra note 25 (pardoning Vietnam War draft dodgers and containing similar language that and was also deemed self-executing).
[29] . See Presidential Proclamation on Marijuana Possession, U.S. Dep’t Just. (March 7, 2023), https://www.justice.gov/pardon/presidential-proclamation-marijuana-possession [https://perma.cc/BW4X-H36M].
[30] . For example, such alternative evidence could consist of establishing that (1) the person was an LPR or U.S. citizen as of Oct. 6, 2022; (2) the person’s relevant conviction was for simple marijuana possession as defined by the federal Controlled Substance Act; and (3) evidence of lawful presence at the time the relevant possessory conduct occurred.
[31] . As mentioned previously, the prevailing modern view is that beneficiaries of full and unconditional pardons by the President do not need to “accept” the pardon for it to be effective. See generally Biddle v. Preovich, 274 U.S. 480 (1927) (holding a presidential commutation effective even when rejected by the prisoner); Crouch, supra note 26, at 30–31.
[32] . 8 U.S.C. § 1158(c)(1) (specifying rights and criteria for asylees); 8 U.S.C. § 1159 (specifying criteria for asylee adjustment of status to permanent residence); 8 C.F.R. § 209.2 (2005) (same).
[33] . Nonimmigrant visas, such as H-1A, H-1B, L, E, and O, typically allow for “dual intent” such that the noncitizen worker can eventually obtain permanent residence through an employment-based immigrant visa. See generally Non-Immigrant Categories and Requirements, 1Health L. Prac. Guide § 6B:13 (2022).
[34] . See Andrew Craycroft & Rachel Prandini, Adjustment of Status Through Special Immigrant Juvenile Status (SIJS), Immigr. Legal Res. Ctr. (Mar. 2022), https://www.ilrc.org/sites/default/files/resources/adjustment_of_status_through_sijs _3-22.pdf [https://perma.cc/9LA6-JNTG].
[35] . See Victims of Criminal Activity: U Nonimmigrant Status, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other- crimes/victims-of-criminal-activity-u-nonimmigrant-status [https://perma.cc/ZS4P- 49GF].
[36] . See Alexandra Carnes, Annual Report on Immigration Applications and Petitions Made by Victims of Abuse – Fiscal Year 2020, Dep’t. Homeland Sec. (Apr. 16, 2021), https://www.uscis.gov/sites/default/files/document/reports/FY20-Immigration- Applications-Made-by-Victims-of-Abuse.pdf [https://perma.cc/87R3-895U].
[37] . Proclamation, supra note 1.
[38] . This is true even when the prior marijuana possession offense was waived under immigration law or subject to the petty offense exception. See INA § 212(h) (discretionary waiver available in certain circumstances); 8 U.S.C. § 1227(a)(2)(B)(i) (petty offense exception to controlled substance deportation ground if conviction was single offense of marijuana possession involving less than 30 grams).
[39] . See Presidential Statement on Marijuana Reform, supra note 1 (“Too many lives have been upended because of our failed approach to marijuana.”); Support for Legal Marijuana Holds at Record High of 68%, supra note 2.
[40] . See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substance ground of inadmissibility).
[41] . See 8 U.S.C. § 1182(h) (specifying various grounds for a waiver of inadmissibility based on certain criminal grounds, including controlled substance offenses). If, on the other hand, there was undetected usage, then nondisclosure of that fact on the adjustment of status application would constitute misrepresentation, which would be an independent ground for removal even if that usage is now subject to a federal pardon. 8 U.S.C.§ 1182(a)(6)(C)(i) (inadmissibility ground for misrepresentation); 8 U.S.C. §1227(a)(1) (providing for deportation of any noncitizen who was inadmissible at the time of entry or adjustment of status).
[42] . Patti B. Saris, Charles R. Breyer, Dabney L. Friedrich, Rachel E. Barkow, William H. Pryor, Jr., Michelle Morales & J. Patricia Wilson Smoot, Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System, U.S. Sent’g Comm’n 9 (Sept. 2016), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research- publications/2016/201609_Simple-Possession.pdf [https://perma.cc/ 2YNU-HN8H] (reporting that the median weight of marijuana possession among offenders arrested in the interior United States was 5.2 grams).
[43] . See Elizabeth Keyes, Beyond Saints and Sinners: Discretion and the Need for New Narratives in the U.S. Immigration System, 26 Geo. Immigr. L.J. 207, 221 (2012) (“Although the ‘bad immigrant’ narratives are created and broadcast most often by those with a conservative political agenda, progressive immigrant advocates inadvertently legitimize the very notion of simple immigrant narratives by countering them with ‘good immigrant’ narratives.”).
[44] . The undeserving immigrant narrative is pervasive in debates about immigration policy, as the Biden Administration is aware. See Mainstreaming Hate: The Anti-Immigrant Movement in the U.S., Anti-Defamation League (May 3, 2022) https://www.adl.org/resources/report/mainstreaming-hate-anti-immigrant-movement-us [https://perma.cc/T5WX-R3G2] (describing the increasing demonization of immigrant groups in politics); Muzaffar Chishti & Kathleen Bush-Joseph, Biden at the Two-Year Mark: Significant Immigration Actions Eclipsed by Record Border Numbers, Migration Pol’y Inst. (Jan. 26, 2023), https://www.migration policy.org/article/biden-two-years-immigration- record [https://perma.cc/ZYS9-LKHF] (describing how many of the Biden Administration’s immigration policies have been hampered by conservative political narratives).
[45] . Arizona v. United States, 567 U.S. 387, 408–10 (2012).
[46] . Although discrimination among U.S. citizens lies beyond the scope of this Article, insofar as the terms of the Biden proclamation treat some U.S. citizens as inferior to others based on nothing more than a prior period of unlawful presence, further legal scrutiny is warranted.
[47] . Cade, supra note 9, at 358; Biddle v. Perovich, 274 U.S. 480, 486 (1927) (“A pardon . . . is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgement fixed.”).
[48] . Cade, supra note 9, at 366–72. See also Morison, supra note 27, at 261 (cataloging immigration-related presidential pardons over the twentieth century).
[49] . Matter of H, 6 I. & N. Dec. 90, 96–97 (B.I.A. 1954). See also Matter of C, 6 I. & N. Dec. 709, 710 (B.I.A. 1953) (giving preclusive effect in deportation proceedings to a presidential pardon for a narcotics conviction); Cade, supra note 9, at 366–72 (collecting cases and authorities supporting the historical effectiveness of pardons in immigration).
[50] . See Immigration Act of 1990, 101 Pub. L. No. 649, 104 Stat. 4978; Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104–208, 110 Stat. 3009; Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat. 1214.
[51] . 8 U.S.C. § 1182 (inadmissibility); 8 U.S.C. § 1227 (deportability); 8 U.S.C. § 1229b (discretionary relief from removal). The INA also sets forth the circumstances for mandatory or discretionary detention on the basis of criminal history. See 8 U.S.C. § 1226; 8 U.S.C. § 1226a.
[52] . 8 U.S.C. § 1227.
[53] . 8 U.S.C. § 1227(a)(2)(A)(vi). The INA also sets forth its own definition of what qualifies as a continuing “conviction” for immigration purposes, which does not intuitively track the criminal law’s treatment. See 8 U.S.C. § 1101(1)(48). That more expansive definition of conviction explains why immigration authorities have disregarded various criminal justice mechanisms that, in other contexts, ameliorate the consequences of criminal histories, such as rehabilitative expungements, but that tortured line of statutory revision—along with the agency and case law it generated—has not been strictly relied upon as the basis for disregarding some state pardons. See generally Cade, supra note 9. Nor, I contend, would that statutory gloss on convictions in the immigration context provide sufficient grounds to overcome the president’s constitutional pardon power for the reasons I set forth in this Essay.
[54] . See 8 U.S.C. 1227(a)(2)(A)(v), (B), (C), (D), (E).
[55] . Under the BIA’s interpretation, in addition to controlled substance offenses, criminal history removal categories deemed to be unpardonable for immigration purposes include firearms offenses and domestic violence offenses, among others. The controlled substance category is significant, accounting for more than 16 percent of all criminal history deportation over the last decade. Alan Moskowitz & James Lee, Immigration Enforcement Actions: 202012 (2020) (delineating annual removal statistics for “dangerous drugs” from 2011 to 2020).
[56] . See Expressio unius est exclusio alterius, Black’s Law Dictionary (11th ed. 2019) (defining expressio unius est exclusio alterius as “A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.”).
[57] . Matter of Suh, 23 I. & N. Dec. 626, 627 (B.I.A. 2003).
[58] . Id. at 626.
[59] . Id. at 626–28.
[60] . Id. at 628.
[61] . See, e.g., In re Garcia-Lopez, 2007 WL 2825112 (B.I.A. Aug. 30, 2007) (finding no statutory basis to conclude that a pardon waives a controlled substance ground of removability); In re Al-Jailani, 2004 WL 1739163, at *1–2 (B.I.A. June 28, 2004) (holding that a domestic violence conviction is not within the waiver provision).
[62] . See, e.g., Aristy-Rosa v. Attorney General, 994 F.3d 112, 115 (3d Cir. 2021) (citing Matter of Suh, 23 I. & N. Dec. at 628 and noting that “Congress did not explicitly provide that a full pardon for a controlled substance conviction extinguishes the immigration consequences of that offense.”); Tetteh v. Garland, 995 F.3d 361, 366 (4th Cir. 2021) (holding that a firearms conviction pardon “waives his aggravated felony conviction as a ground for removal, but not the other grounds”).
[63] . See 8 U.S.C. § 1101(a)(43)(A) (defining sexual abuse of a minor as an aggravated felony); Padilla v. Gonzales, 397 F .3d 1016 (7th Cir. 2005) (noting in dicta that that sexual abuse of a minor is a “crime involving moral turpitude”).
[64] . Matter of Suh, 23 I. & N. Dec. 626, 627–28 (B.I.A. 2003) (holding that pardon for a single sexual battery conviction eliminated the aggravated felony basis for removal but had no effect on the domestic violence deportability ground).
[65] . 8 U.S.C. § 1101(a)(43)(B).
[66] . See, e.g., In re Ali, 2007 WL 1126092, at *1–2 (B.I.A. Feb. 20, 2007) (giving preclusive effect to a pardon for a child molestation conviction where the respondent was charged solely with deportation as an aggravated felon, even though he could also have been charged under the domestic violence provision); In re Rosales-Lopez, 2004 WL 2374358, at *1 (B.I.A. July 26, 2004) (giving a pardon preclusive effect where the noncitizen was charged only under the drug trafficking aggravated felony category rather than the controlled substance category). Because these decisions were not formally published, they are not accorded precedential weight; nevertheless, they reveal how the agency has been parsing the statute in practice.
[67] . Cf. Judulang v. Holder, 565 U.S. 42, 57 (2011) (holding that the outcome of a noncitizen’s eligibility for relief from removal may not “rest on the happenstance of an immigration official’s charging decision”).
[68] . See 8 U.S.C. § 1182(a)(1)–(10).
[69] . Although LPRs who temporarily travel abroad generally are deemed not to be seeking admission upon return, the INA provides that this presumption does not apply where, among other things, the noncitizen has “committed” certain criminal offenses, including controlled substance violations. 8 U.S.C. § 1101(a)(13)(C). Thus, an LPR who travels abroad with a federal marijuana offense would likely face the controlled substance inadmissibility ground, even if the offense has been pardoned.
[70] . See, e.g., 8 U.S.C. § 1255(a) (stating that a person must be admissible to the United States to adjust status to lawful permanent resident).
[71] . See, e.g., Matter of Rahman, 16 I. & N. Dec. 579, 580 (B.I.A. 1978) (holding that reentering lawful residents are within the terms of President Carter’s 1977 pardons to Vietnam War draft resisters, which specifically included noncitizens excludable for violating the Military Selective Service Act); Matter of K, 9 I. & N. Dec. 121, 125 (B.I.A. 1960) (holding that pardons overcome grounds of inadmissibility where the refugee seeks to adjust their status to lawful permanent residence); Matter of H, 6 I. & N. Dec. 90, 96 (B.I.A. 1954) (finding “no sound basis in logic or in reason to hold that this pardoning forgiveness or immunity” is ineffective to prevent deportation on ground of inadmissibility at time of entry in exclusion proceedings as well as deportation proceedings); Matter of E-V, 5 I. & N. Dec. 194, 196 (B.I.A. 1953) (holding that a noncitizen seeking admission who has been pardoned cannot be excluded on the ground that he has admitted the essential elements of the pardoned offense).
[72] . Research discloses one unpublished BIA decision to the contrary, but its reasoning is sparse and, importantly, unpublished rulings carry no precedential effect. See In re Irabor, 2006 WL 2008305, at *3 (B.I.A. 2006) (holding that the statutory language regarding pardons “does not apply to aliens charged with inadmissibility under section 212(a) of the Act”). Where an agency such as the BIA wishes to depart from a settled course of adjudication, it must directly grapple with that precedent and explain why the departure is reasonable. See, e.g., Thompson v. Barr, 959 F.3d 476, 484–90 (2020) (holding that where the BIA has established a policy concerning the validity of executive pardons whose powers derive from statutory rather than constitutional sources, it cannot arbitrarily change course).
[73] . See Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1362–63 (11th Cir. 2005) (inferring that because the inadmissibility section of the INA does not have a specific “pardon provision,” Congress must not have “intended to extend the pardon waiver to inadmissible aliens”); Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir. 2008) (agreeing with the 11th Circuit reasoning in Balogun that “the basic tenets of statutory construction preclude us from inferring a waiver under the [inadmissibility] provisions”).
[74] . See, e.g., 8 U.S.C. § 1182(a)(2) (providing that inadmissibility grounds apply where the noncitizen admits committing the underlying acts).
[75] . See, e.g., Hirschberg v. Commodity Futures Trading Comm’n, 414 F.3d 679, 682 (7th Cir. 2005) (stating that a pardon “does not blot out guilt”); In re Abrams, 689 A. 2d 6 (D.C. App. 1997) (upholding bar discipline based upon conduct underlying pardoned conviction); Bjerkan v. United States, 529 F.2d 125, 127–28 (7th Cir. 1975) (restoring state and federal civil rights to the extent collateral consequences were predicated on a pardoned conviction, but acknowledging that consequences flowing from the underlying criminal act might still be permissible). Moreover, the Supreme Court has held that a pardoned conviction can be considered for a sentencing enhancement for a subsequent offense, but in so doing, emphasized that such a sentence did not impose “an additional punishment on crimes for which [the petitioner] had already been convicted and punished [and pardoned,]” but rather imposed“punishment...for the new crime only.” See Carlesi v.New York, 233 U.S. 51, 54 (1913). See generally Crouch, supra note 26, at 33–34 (“[A] pardon could erase the results of a conviction, but any effects of committing the crime continued on.”); Richard Lempert, Presidential Pardons: Settled Law, Unsettled Issues, and a Downside for Trump, Brookings (Jan. 17, 2021), https://www.brookings.edu/blog/fixgov/2021/01/17/presidential-pardons- settled-law-unsettled-issues-and-a-downside-for-trump/ [https://perma.cc/59TJ-5GKT] (“Despite being pardoned a person would, for example, have to answer ‘yes’ when asked if he had ever been convicted of a crime, and in a state where convicted felons are denied the vote, a presidential pardon will not restore that right.”). Pardons based on actual innocence, however, should offer a complete defense to the imposition of any consequences stemming from prior criminal history or imputation of guilt.
[76] . To the contrary, when interpreting the effect of a pardon pursuant to a previous statutory regime, the BIA has explicitly rejected the idea that a noncitizen could be excluded based on her admission of the essential elements of a pardoned offense. See Matter of E-V, 5 I. & N. Dec. at 196.
[77] . Congress occasionally provides advantages to noncitizens in the inadmissibility context that are not available in deportation proceedings, and these distinctions have been upheld as rational. For example, aggravated felonies are a ground of removal but not inadmissibility. See generally Mary E. Kramer, Immigration Consequences of Criminal Activity (8th ed. 2019).
[78] . See 8 U.S.C. § 1227(a)(2)(A)(vi) (indicating that crimes involving moral turpitude, multiple criminal convictions, aggravated felonies, and high-speed flight “shall not apply” where the noncitizen’s relevant conviction has been pardoned).
[79] . See 22 C.F.R. § 40.21(a)(5) (2023) (stating noncitizens should not be held inadmissible for a crime involving moral turpitude if the offense has been pardoned); 22 C.F.R. § 40.22(c) (2023) (stating noncitizens should not be held inadmissible for an offense triggering multiple criminal convictions ground if the offense has been pardoned).
[80] . See, e.g., In re Ali, 2007 WL 1126092, at *2 (B.I.A. Feb. 20, 2007) (remanding for consideration of discretionary relief where the respondent was no longer deportable for an aggravated felony following a pardon for a child molestation conviction); In re Rosales- Lopez, 2004 WL 2374358, at *1 (B.I.A. July 26, 2004) (recognizing pardoned noncitizen charged with an aggravated felony was eligible for discretionary voluntary departure); Matter of H, 7 I. & N. Dec. 249, 250 (B.I.A. 1956) (remanding to allow the respondent to seek discretionary relief where larceny conviction was pardoned, and respondent was not statutorily precluded from showing good moral character). Likewise, decisions that predate the amendments that have given rise to the BIA’s current approach also hold that a pardon removes conviction-based statutory bars to naturalization. See, e.g., Daddona v. United States, 170 F.2d 964 (2d Cir. 1948) (rendering a petitioner eligible for naturalization upon receiving an executive pardon); In re Sperduti, 81 F. Supp. 833, 835 (M.D. Pa. 1949) (same); In re Balestrieri, 59 F. Supp. 181, 181–82 (N.D. Cal. 1945) (same).
[81] . Cade, supra note 9, at 414.
[82] . See U.S. Const. art. II, § 2, cl. 1 (“[T]he President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”).
[83] . Cf. Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1251 (9th Cir. 2008) (“It is true that, in Ex parte Garland . . . there is broad language to the effect that Congress cannot fix . . . consequences which attach to a conviction beyond the reach of executive clemency. But the Court was there speaking of federal executive clemency, not state.” (quoting Kwai Chiu Yuen v. INS, 406 F.2d 499, 501 (9th Cir. 1969))).
[84] . Schick v. Reed, 419 U.S. 256, 267 (1974).
[85] . The Court’s interpretations have recognized structural limitations on the pardon power, but these can be summarized as primarily concerning vested federal and private property rights and, therefore, are not on point with the present discussion. See, e.g., Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 425–26 (1990); Knote v. United States, 95 U.S. 149, 154 (1877); Hart v. United States, 118 U.S. 62, 67 (1886); Ex parte Garland, 71 U.S. (4 Wall.) 333, 381 (1866). More controversially, the Equal Protection and Due Process Clauses may, in extreme cases, impose some constraints on the president’s pardon power, but that discussion lies beyond this Article’s focus. See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 617–18 (1991) [hereinafter Kobil, Quality of Mercy] (considering equal protection grounds for challenges to exercise of clemency); Crouch, supra note 26, at 35, 51–52 (exploring due process considerations in pardon matters).
[86] . Crouch, supra note 26, at 19; see also Crouch, supra note 26 at 27 (“Considered alongside other Article II powers, the clemency clause is unique in its stark, powerful mandate to the president.”).
[87] . Morison, supra note 27, at 257.
[88] . Crouch, supra note 26, at 14; Ex parte United States, 242 U.S. 27, 41–42 (1916).
[89] . Ex parte Garland, 71 U.S. at 380. See generally Crouch, supra note 26, at 29–39 (describing the history of the Supreme Court’s Pardon Clause jurisprudence); Kobil, Quality of Mercy, supra note 85, at 595 (discussing the extreme flexibility of the pardon power as interpreted by the Court in Ex parte Garland).
[90] . United States v. Padelford, 76 U.S. (9 Wall.) 531 (1869).
[91] . Id. at 543. While the statute at issue explicitly authorized presidential pardons, the Padelford Court did not address whether such authorization was strictly required. The Court later made clear, however, that the purported authorization was superfluous. See United States v. Klein, 80 U.S. (13 Wall.) 128, 139, 141–42 (1871).
[92] . Klein, 80 U.S. at 147–48.
[93] . Osborn v. United States, 91 U.S. 474, 477 (1875); see also Boyd v. United States, 142 U.S. 450, 453–54 (1892) (holding that a pardon removes the prohibition against testifying as a witness that would otherwise follow as a consequence of a larceny conviction); In re Armstrong’s Foundry, 73 U.S. 766, 769 (1867) (“We think it clear that the statute regarded the consent of the owner to the employment of his property in aid of the rebellion as an offence, and inflicted forfeiture as a penalty. The general pardon of Armstrong, therefore, relieved him of so much of the penalty as accrued to the United States.”); cf. Knote v. United States, 95 U.S. 149, 153–54 (1877) (confirming that a pardon by the president “releases the offender from all disabilities imposed by the offence, and restores to him all his civil rights” but holding in the particular circumstances of that case that pardoned petitioner could not recover for land already seized and sold to a third party).
[94] . See, e.g., Schick v. Reed, 419 U.S. 256, 266 (1974); Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 485–86 (1989), stating:
Where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch. For example, the Constitution confers upon the President the ‘Power to grant Reprieves and Pardons . . . .’ Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself. It is improper for this Court to arrogate to itself the power to adjust a balance settled by the explicit terms of the Constitution.
Id.
[95] . Schick, 419 U.S. at 256.
[96] . Id. at 266 (“A fair reading of . . . Art. II, § 2, cl. 1, . . . and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress.”).
[97] . See, e.g., Bjerkan v. United States, 529 F.2d 125, 128 (7th Cir. 1975). “Thus, the fact of conviction after a pardon cannot be taken into account in subsequent proceedings. However, the commission of the crime may be considered. Therefore, although the effects of the commission of the offense linger after a pardon, the effects of the conviction are all but wiped out.” Id. at n.2 (emphasis added); In re Abrams, 689 A.2d 6, 7 (D.C. App. 1997) (holding that a pardon by President George H.W. Bush of Elliott Abrams for a conviction related to having given false congressional testimony set aside any legal consequences that would attach to that conviction, but could not preclude a Board of Professional Responsibility from suspending his bar license for one year where that consequence did not require a conviction but merely a finding of particular conduct); see also authorities cited supra note 75.
[98] . Bjerkan, 529 F.2d at 128 (citing Carlesi v. New York, 233 U.S. 51 (1914)); see also id. at 128 n.2 (“Thus, the fact of conviction after a pardon cannot be taken into account in subsequent proceedings.”); Armstrong’s Foundry, 73 U.S. at 769 (holding that a pardon defeats collateral statutory penalty of forfeiture of property); Cummings v. Missouri, 71 U.S. 277, 320–22 (1866) (holding that constitutionally imposed disabilities such as disqualification from office or professional occupations “must be regarded as penalties— they constitute punishment” and that “[a]ny deprivation or suspension of any of these [civil or political] rights for past conduct is punishment, and can be in no otherwise defined”).
[99] . See, e.g., Effects of a Presidential Pardon, 19 Op. O.L.C. 160 (1995) (“It is clear that deportation . . . operates solely on the basis of the conviction of crime and therefore falls within the type of consequence that is removed by a pardon under the Williston distinction. . . . As such, its application to a pardoned alien is impermissible.”).
[100] . Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (citation omitted). See also id. at 374 (citing “the seriousness of deportation as a consequence of a criminal plea” in support of a Sixth Amendment duty of counsel to provide advice as to the deportation consequences of a particular conviction); Effects of a Presidential Pardon, supra note 99, at n.2 (explaining that “a presidential pardon removes all adverse consequences of conviction that can be viewed as punishments, penalties, or disabilities that attach by reason of the conviction, regardless of whether they are viewed as ‘punishment’ for purposes of invoking other constitutional provisions”).
[101] . Padilla, 559 U.S. at 364–66, 374.
[102] . Schick v. Reed, 419 U.S. 256, 266 (1974).
[103] . See supra notes 27, 48, 49, 71, 76, 80, and 99.
[104] . Adam B. Cox & Cristina M. Rodriguez, the President and Immigration Law 3(2020) (“[O]ver the course of two centuries, the President became our immigration policymaker- in-chief.”).
[105] . Id. at 193.
The President and his administration have been architects of our immigration policy, right alongside Congress, from the beginning. . . . With a range of authorities conferred on it by the Constitution, by statutes, and by the twentieth-century rise of what we have labeled de facto delegation, the Executive has helped construct the domain of the law by deciding whom and when to regulate.
Id.
[106] . 462 U.S. 919 (1983).
[107] . Id. at 947–59.
[108] . See, e.g., Reply Brief of the House of Representatives at 2–14, Chadha, 462 U.S. 919 (No. 80–1832), 1982 WL 607218 (devoting twelve pages to the argument that the plenary power doctrine should control the result in the case). At oral argument, counsel for the House of Representatives protested, “neither the presentment clause nor the general separation of powers doctrine can be said to be an imperious restriction upon the choice of means selected by Congress to execute its power over the naturalization or deportation of aliens.” Barbara Hinkson Craig, Chadha: The Story of an Epic Constitutional Struggle 204 (1988). Justice White would have let the legislative veto provision survive at least this challenge, but his viewpoint could not persuade the Court. See Chadha, 462 U.S. at 1000 (White, J., dissenting) (citing Kleindienst v. Mandel, 408 U.S. 753, 766 (1972)).
[109] . Chadha, 462 U.S. at 940–41.
[110] . Cf. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 303 (1984) (indicating that the Chadha decision suggests a departure from the notion of plenary congressional power over immigration).
[111] . Crouch, supra note 26, at 29. See Crouch, supra note 26, at 19 (“Although the framers were sensitive to the danger of unleashing an American monarch, they nonetheless entrusted the president with this unique, kingly power.”).
[112] . Cf. Morison, supra note 27, at 256 (“[W]hile the legal validity of a pardon is certainly constrained by the Court’s decisions interpreting the meaning of the Constitution, it is not constrained by the transitory dictates of legislative priorities.”).
[113] . United States v. Klein, 80 U.S. 128, 139, 141–42 (1871) (characterizing a provision incorporated into the Abandoned and Captured Property Act, which allowed presidential pardons to defeat confiscation of rebel property, as a “suggestion . . . rather than authority,” and holding that a later repeal of the “section of the act of Congress which purported to authorize the proclamation of pardon and amnesty by the President” therefore “does not alter at all the operation of the pardon, or reduce in any degree the obligations of Congress under the Constitution to give full effect to it”). See also Crouch supra note 26. As I explain below, however, one can reasonably read the statute not to evince congressional intent to limit the effectiveness of pardons but rather, to the contrary, to ensure that even the INA’s most serious crime-based deportation grounds are given effect.
[114] . Cf. Padilla v. Kentucky, 559 U.S. 356, 365–66 (holding that deportation is a particularly severe “penalty” that Congress has attached to most noncitizen convictions).
[115] . See generally Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex. L. Rev. 1549, 1603–09 (2000) (explaining that the Court’s clear statement rules protect constitutional norms).
[116] . See, e.g., Morrison v. Olson, 487 U.S. 654, 682–83 (1988) (narrowly construing the provision for termination of independent counsel in the Ethics in Government Act so as to avoid intrusion into administrative “matters that are more properly within the Executive’s authority”).
[117] . See generally Young, supra note 115; Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 Wm. & Mary L. Rev. 1575, 1603–40 (2001).
[118] . See Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, S. Cal. L. Rev. 1281, 1289–95 (2002).
[119] . 533 U.S. 289 (2001).
[120] . Id. at 320 (invoking “the longstanding principle of construing lingering ambiguities in deportation statutes in favor of the [noncitizen]”); id. at 319 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).
[121] . St. Cyr, 533 U.S. at 315, 315 n.68.
[122] . 533 U.S. 678 (2001).
[123] . Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998).
[124] . Zadvydas, 533 U.S. at 688.
[125] . Coenen, supra note 118, at 1295.
[126] . See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006) (requiring a clear statement from Congress to replace traditional adjudication procedures in terrorism prosecutions); Calcano-Martinez v. INS, 533 U.S. 348, 351–52 (2001) (holding that “Congress has not spoken with sufficient clarity to strip the district courts of jurisdiction” in light of “serious constitutional questions” that follow from a statutory interpretation that leaves “aliens without a forum for adjudicating claims”); INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (construing statutory ambiguity in favor of the noncitizen).
[127] . Whitman v. American Trucking Ass’ns, 531 U.S. 457, 471 (2001).
[128] . INS v. St. Cyr, 533 U.S., 289, 299 (2001).
[129] . Cf. Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) (“[I]n this case we are not looking for a plain statement that judges are excluded [from the Age Discrimination in Employment Act]. We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included.”).
[130] . Narcotic Control Act of 1956, Pub. L. No. 84–728, § 301, 70 Stat. 567, 575 (amending the pardon provision then operative by providing that “[t]he provisions of this subsection shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a) (11) of this section,” which, as amended by the same act, sets forth controlled substance offenses including possession and trafficking). See generally Cade, supra note 9 (describing the evolution of pardon treatment in immigration proceedings over the course of the twentieth century).
[131] . See, e.g., Nancy Morawetz, INS v. St. Cyr: The Campaign to Preserve Court Review and Stop Retroactive Deportation Laws, in Immigration Stories 279, 282 (David A. Martin & Peter H. Schuck eds., 2005) (describing controversial last-minute measures inserted into the 1996 immigration bills); Margaret H. Taylor, Demore v. Kim: Judicial Deference to Congressional Folly, in Immigration Stories, 343, 352–53 (David A. Martin & Peter H. Schuck eds., 2005) (“All of a sudden, controversial measures that were still being debated as part of the comprehensive immigration reform bill, expected later that year, passed by an overwhelming (and veto-resistant) majority because they had been inserted into the AEDPA legislation.”).
[132] . Cade, supra note 9.
[133] . See Lawrence M. Solan, The Language of Statutes 69 (2010).
[134] . See, e.g., United States v. Granderson, 511 U.S. 39, 45 (1994) (rejecting the most natural textual reading of a sentencing guidelines provision on the grounds that it leads to an absurd result); United States v. Wilson, 503 U.S. 329, 334 (1992) (rejecting an interpretation of the Sentencing Reform Act that “would make the award of credit [for time served] arbitrary”); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510 (1989) (“No matter how plain the text of the Rule may be, we cannot accept an interpretation that would deny a civil plaintiff the same right to impeach an adversary’s testimony that it grants to a civil defendant.”).
[135] . Compare 8 U.S.C. §1101 (listing aggravated felonies) with 8 U.S.C. §1227 (listing miscellaneous conviction-based grounds for removal); see generally Kramer, supra note 77, at 289–460 (discussing overlapping removal grounds in the INA based on criminal activity).
[136] . See supra text accompanying notes 63–69.
[137] . 56 U.S. 42 (2011).
[138] . Id. at 57.
[139] . Id. at 58.
[140] . Id. at 45.
[141] . Einer Elhauge, Statutory Default Rules 189 (2008) (“Statutory language that lists certain applications may indicate a legislative desire to identify examples and inclusions, rather than limitations and exclusions. Alternatively, failing to list the application at issue may reflect simple error or inadvertence, [or] a failure to focus on details or foresee the issue.”). See also William N. Eskridge, Jr., Dynamic Statutory Interpretation 278 (1994) (“[E]xpressio unius is not considered a reliable maxim of logic or word usage.”); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 454– 59 (1989) (describing the expressio unius canon as “controversial” and “not to be used mechanically”).
[142] . See generally Kramer, supra note 77, 491–96 (discussing the immigration consequences when criminal activity is classified as an aggravated felony).
[143] . See also Cade, supra note 9, at 417. As I have explained, the current pardon provision is plausibly explained as a “vestige of [the] first criminal deportation statute in 1917,” in which Congress mentioned the effect of pardons:
to ensure that immigration officials—tasked with implementing an immigration scheme that for the first time provided for deportation on the basis of state convictions—would continue to fully respect the state’s traditional authority to undo the effect of those convictions through the sovereign pardon power. Indeed, as deportation categories were periodically enacted in the decades following the 1917 Act, pardons continued to be held effective for each, until Congress made explicit its intention to place controlled substances offenses outside the reach of pardons for immigration purposes from 1956 to 1990.
Id.
[144] . Crouch, supra note 26, at 29 (“The clemency power, simply put, is intended to provide for a solution in cases where—for whatever reason—normal legal procedures have produced an outcome that seems unjust.”).
[145] . Since the 1952 Act, the text in the INA giving explicit effect to pardons in certain deportation categories has referred to both presidential and gubernatorial pardons in the same sentence. See Immigration and Nationality Act of 1952 § 241(b), Pub. L. No. 82–414, 66 Stat. 208 (1952). While it may be theoretically possible, if awkward, to sever and excise the language in the INA provision affecting presidential pardons while leaving intact the restrictive approach regarding gubernatorial pardons, the severability inquiry generally follows the constitutional question. See, e.g., Buckley v. Valeo, 424 U.S. 1, 107–09 (1976) (severing subsection H from those portions of the Federal Election Campaign Act of 1971 that were first found “constitutionally infirm”); Carlin Commc’ns, Inc. v. FCC, 837 F.2d 546, 549 (2d Cir. 1988) (finding the words “obscene or indecent” severable from a provision of the Federal Communications Commission Authorization Act of 1983 that established conditions under which providers of an “obscene or indecent” message would have a defense to prosecution).
[146] . Coenen, supra note 118, at 1291. Cf. Landgraf v. USI Film Prods., 511 U.S. 244, 272–73 (1994) (“Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.”).
[147] . At a minimum, legislators should clarify—in keeping with longstanding past practice—that both state and federal pardons have preclusive effect for all immigration consequences.
[148] . See, e.g., Mariano-Florentino Cuéllar, The Political Economies of Immigration Law, 2 U.C. Irvine L. Rev. 1 (2012) (describing how the various dynamics producing the structure of modern immigration law create powerful obstacles to legislative change); Marianne Levine, Sarah Ferris & Laura Barrón-López, Immigration Reform Withers as Democrats Descend Into Border Infighting, Politico (May 1, 2022, 8:23 AM), https://www.politico.com/news/2022/05/01/democrats-immigration-reform-infighting- 00029087 [https://perma.cc/BX4R-DDMW].
[149] . Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. 661 (2015).
[150] . Compare Fiscal Year 2019 Overview of Federal Criminal Cases, United States Sent’g Comm’n (April 2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/FY19_Overview_Federal_Criminal_Cases.pdf [https://perma.cc/45QG-JAWK] (showing 76,538 federal offenders in 2019), with Sarah Gibson, Diane Robinson & Morgan Moffet, Court Statistics Project, Pandemic Caseload Highlights: Incoming and Outgoing Cases 2019–2021 (Aug. 2022), https://www.ncsc.org/__data/assets/pdf_file/0026/82484/Pandemic-Caseload-Highlights,- Incoming-and-Outgoing-Cases-2019-2021.pdf [https://perma.cc/6G4C-MDKH] (showing around 9 million incoming criminal cases in state courts in 2019).
[151] . See, e.g., Amanda Waldroupe, The Story of One US Governor’s Historic Use of Clemency: ‘We Are a Nation of Second Chances’, Guardian (Sept. 28, 2022), https://www.theguardian.com/us-news/2022/sep/28/oregon-governor-kate-brown- clemency [https://perma.cc/L28L-B2JK] (reporting that Oregon Governor Kate Brown had “granted commutations or pardons to 1,147 people”); Christina Caron, Jerry Brown Pardons 5 Ex-Convicts Facing Deportation, Provoking Trump, N.Y. Times (Mar. 31, 2018), https://www.nytimes.com/2018/03/31/us/california-pardon-immigrants.html [https://perma.cc/7RYA-8JFV] (reporting that the governor had granted 1115 pardons and 51 commutations since taking office in 2011, including to noncitizens facing deportation or already deported); John Leland, With a Fresh Swipe at Trump, Cuomo Pardons 22 Immigrants, N.Y. Times (Dec. 31, 2018), https://www.nytimes.com/2018/12/31/nyregion/ cuomo-pardons-immigrants-trump.html [https://perma.cc/6EF9-7Y9H]; Cade, supra note 9, at 357 (relying on records obtained through open records requests to conclude that New York Governor David Paterson “issued full and unconditional pardons to thirty-three noncitizens”).
[152] . See, e.g., Thomas Edward, California’s Newsom Signs Bill to Offer Alternative Plea for Those Facing Drug Charges, High Times (Oct. 6, 2022), https://hightimes.com/news/californias- newsom-signs-bill-to-offer-alternative-plea-for-those-facing-drug-charges/ [https://perma.cc/ 66FP-XHU3] (describing a new law that enables prosecutors to offer a public nuisance plea instead of a drug-related offense).
[153] . See, e.g., Arizona v. United States, 567 U.S. 387, 396 (2012) (“Discretion in the enforcement of immigration law embraces immediate human concerns. . . . Returning [a noncitizen] to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.”); Cox & Rodriguez, supra note 104; Cade, supra note 149, at 679–83.
[154] . Indeed, executive officials have an independent duty to uphold constitutional rights and adhere to constitutional limits, and the analysis offered in this Essay should caution federal officials away from disregarding presidential pardons in particular. See generally Jason A. Cade, Policing the Immigration Police: ICE Prosecutorial Discretion & the Fourth Amendment, 113 Colum. L. Rev. Sidebar 180, 190–98 (2013); Lawrence G. Sager, Justice in Plainclothes (2004).
[155] . Jason A. Cade, Return of the JRAD, 90 N.Y.U. L. Rev. Online 36 (2015) (articulating and analyzing various “disproportionality rules of thumb,” such as pardons and expungements).
[156] . Legal opinions by the Office of Legal Counsel and attorney general unequivocally express the principle that a presidential pardon eliminates all legal penalties and disabilities that would otherwise arise solely by virtue of the conviction. See Effects of a Presidential Pardon, supra note 99 (concluding that a presidential pardon terminates all conviction- based legal penalties, including state firearms disability and federal deportation); Naval Serv.-Desertion-Pardon, 31 Op. Att’y Gen. 225, 232 (1918) (concluding that congressional efforts to limit the pardon power are invalid).
[157] . Kobil, supra note 22, at 38 (“Alexander Hamilton wrote that the unfettered power to dispense ‘the mercy of government’ had been placed in the hands of the president for reasons of ‘humanity’ so that justice did not appear too ‘sanguinary and cruel.’”).
[158] . Kobil, supra note 22, at 52; see also Anthony M. Kennedy, Speech at the American Bar Association Annual Meeting (Aug. 9, 2003) (transcript available at https://www.supremecourt.gov/publicinfo/speeches/sp_08-09-03.html [https://perma.cc/ 2SD7-K2NZ]) (“[A] people confident in its laws and institutions should not be ashamed of mercy.”).
