The Immigration Implications of Presidential Pot Pardons
37 Pages Posted: 1 Nov 2022 Last revised: 9 Dec 2022
Date Written: October 22, 2022
This essay examines the immigration implications of President Joe Biden's Proclamation on October 6, 2022, which pardons most federal and D.C. offenders—including lawful permanent residents—who have committed the offense of simple marijuana possession. When used this way, the Art. II clemency power serves a communitarian, forward-looking function—in this case 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.
With respect to the impact of pardons on efforts to avoid deportation or to gain lawful admission to the United States, however, ambiguities lurking in the Immigration & Nationality Act (INA) raise unsettled complications. 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 provisions of the INA. These amendments, in turn, led the Board of Immigration Appeals (BIA) to infer legislative intent to make pardons ineffective in the immigration context, except with respect to four specifically-enumerated removal categories—which do not included 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, a lawful permanent resident with a pardoned federal marijuana possession conviction facing deportation should ultimately prevail in light of the broad scope of the presidential pardon power. But the constitutional question need not be fully resolved. At the end of the day, I argue, there are reasons to doubt Congress in fact intended what the BIA 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 BIA’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 directions 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
Suggested Citation: Suggested Citation