For 24 immigrants in New York, Santa could not have brought a better gift. Outgoing Governor David Paterson pardoned 24 individuals for crimes he felt had immigration consequences that were “excessively harsh and in need of modernization.” Earlier this year, Governor Paterson set up an immigration pardon board after he learned that even the most minor of crimes can have devastating immigration consequences including deportation of the offender, permanent separation of families in mixed status homes, and even death to a deportee depending upon the country to where the person is removed.
Unfortunately, immigration laws impose another layer of punishment on criminal defendants who have already had their cases dealt with by a criminal court judge. “Did the crime and served the time” is essentially meaningless when it comes to U.S. immigration law. It’s like fitting a square peg into a round hole. In fact, immigration law does not even recognize expungements or other case closures (erasing or sealing files or post- conviction dismissals), or deferred actions where there is a finding of guilt, or a suspended sentence. In some cases a mere admission to a crime, even if not prosecuted, or an immigration agency’s “reasonable suspicion” that a crime was committed, is enough to deport someone. Immigrants can be deported for offenses that occurred decades ago and for which a small fine was paid. Because of these harsh realities, Governor Paterson established the pardon board since pardons are one of the few types of post-conviction relief that will be honored under immigration law.
Keeping in mind that not every offense is a ground for deportation, it is essential for immigrants, whether in the U.S. lawfully or not, to seek legal advice about the immigration consequences of the offense, if any, the availability of post-conviction relief, and whether there are any waivers available. As a Seattle immigration lawyer, our firm is frequently hired to analyze both U.S. domestic and foreign convictions to determine whether there are any immigration consequences of convictions, admissions or charges. We work closely with a network of domestic and foreign criminal lawyers who are able to determine if there is any post-conviction relief available. Every time Congress passes enforcement-only legislation, the list of deportable minor offenses and their perpetual retroactivity grows. Our immigration laws have become excruciatingly harsh, and Governor Paterson recognizes this (and for political reasons, probably has nothing to lose by his stance, either). But the reality for many people is that our harsh immigration laws affect not just the offender, but the U.S. citizen and legal resident family members, and the immigrant’s employer when they lose a relative or worker to deportation because of old or minor offenses, even after years of rehabilitation and good standing. In fact, the U.S. Supreme Court in Padilla v. Kentucky ruled earlier this year that it can be ineffective assistance of counsel if a criminal lawyer does not advise an immigrant of the immigration consequences of a plea. The Supreme Court articulated why deportation consequences are so intricately wound up in criminal law:
“The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.The “drastic measure” of deportation or removal…is now virtually inevitable for a vast number of noncitizens convicted of crimes.
Under contemporary law, if a non-citizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General….[T]his discretionary relief is not available for an offense related to trafficking in a controlled substance….
These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.These changes confirm our view that, as a matter of federal law, deportation is an integral part–indeed, sometimes the most important part–of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
We have long recognized that deportation is a particularly severe ‘penalty,’ but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature…, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century….. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it ‘most difficult’ to divorce the penalty from the conviction in the deportation context…..Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult…..”
In sum, Governor Paterson’s carefully chosen pardons as a form of post-conviction relief recognize the harsh realities recognized by the Supreme Court and enshrined in our immigration laws. Politically speaking, he pardoned those who had relatively minor offenses and met a host of rehabilitative and good moral character criteria since the offenses occurred.