The Immigration Implications of Presidential Pot Pardons

Abstract

This Essay examines the immigration implications of President Joe Biden's Proclamation on October 6, 2022, which pardons most federal and D.C. offenders who have committed the offense of simple marijuana possession. As I explain, ambiguities lurking in the Immigration & Nationality Act raise complications for noncitizens facing removal on the basis of controlled substance offenses, even if those offenses have been pardoned.

Through most of the nation’s history, both gubernatorial and presidential pardons effectively negated the effect of the pardoned crime for immigration purposes. Toward the end of the twentieth century, however, Congress muddied the waters by amending key statutory provisions. These amendments, in turn, led the Board of Immigration Appeals to infer legislative intent to make pardons ineffective in the immigration context, except with respect to four specifically-enumerated removal categories—which do not include controlled substance offenses. While the Supreme Court has not yet assessed these rulings, lower federal courts have deferred to the agency's interpretation.

All of the immigrant pardon cases to reach the courts thus far, however, have concerned state prosecutions and gubernatorial pardons, such that governing federal law has been given preemptive effect. Presidential pardons, on the other hand, raise a specialized separation-of-powers problem in light of long-undisturbed precedent interpreting the Article II pardon power as immune from congressional constraint. According to the analysis I offer, noncitizens with pardoned federal marijuana possession convictions facing deportation should ultimately prevail. But the constitutional question need not be fully resolved. As I argue, there are reasons to doubt Congress in fact intended what the agency has inferred, and a reasonable alternative construction would give effect to President Biden's drug-possession pardons while prudently avoiding the constitutional danger zone animated by the agency’s statutory interpretation.

The Essay concludes with a set of considerations to which policymakers should attend as they contemplate the adoption of reformatory programs that impact immigration rules. Although the Biden Proclamation too-tightly cabins which noncitizens fall within its reach, it is a step in the right direction and may well foreshadow additional reforms, including future moves by legislative and executive branches at both federal and state levels.

Keywords: pardons, collateral consequences, immigration, deportation, removal, admissibility, inadmissibility, separation of powers, clear statement rules, statutory construction, constitutional avoidance, article 2, marijuana, decriminalization, criminal justice, President Biden

JEL Classification: D73, F22, J61, K14, K19, K23, K33, K40, K41, K42, L22