Presidential Pardons and Immigration Law

Abstract

Despite a rich history of doctrine and practice defining the contours of the President’s authority under the Pardon Clause, both the federal courts of appeals and the Board of Immigration Appeals remain systematically confused about the immigration consequences of a presidential pardon. Most importantly, there is a widespread consensus that Congress is free to define the circumstances under which any pardon, state or federal, will waive a criminal conviction as a ground of removal, because of its inherent authority over immigration matters.

The existing academic literature has not seriously challenged the validity of this conventional view, even though it has no basis in the Supreme Court’s Pardon Clause jurisprudence, which establishes that the President’s exercise of the clemency power is not limited by the generally applicable terms of the existing statutory framework, much less by deliberate attempts at legislative restriction. Moreover, a presidential pardon does not merely relieve the grantee from punishment in the technical constitutional sense, but also removes the collateral disabilities imposed by reason of the commission or conviction of the pardoned offense, including those arising under the immigration laws. Accordingly, a presidential pardon defeats the use of any federal offense as a ground of removal, notwithstanding the contrary terms of the INA’s pardon waiver provision. Finally, because the existing waiver statute subjects federal and state pardon grantees to disparate treatment for immigration purposes, I conclude that the courts should reconsider the equal protection implications of the current pardon waiver regime.