President Biden announced a sweeping pardon of some marijuana drug offenders this week that promises to accelerate conversations about reforming drug laws. Through a Presidential Proclamation issued October 6, 2022, Biden pardoned all U.S. citizens and lawful permanent residents convicted of simple possession of marijuana under federal law or under the laws of Washington, DC. Let me walk through some of the immigration law effects of the president’s bold action.
First, Biden should be commended for pardoning some drug offenders. There aren’t too many people convicted of simple possession of marijuana (according to the U.S. Sentencing Commission, only 309 people were convicted of simple possession of any drug, not just marijuana, under federal law in fiscal year 2021), but the pardon is nonetheless meaningful signal that drug laws are out of control.
Notably, this week’s proclamation goes beyond what President Obama was willing to do back in 2014 when the Justice Department announced a broad commutation initiative. When it comes to the immigration consequences of crimes, commutations have limited reach. Pardons, on the other hand, are more meaningful because they subvert the conviction at its foundation. “A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence,” the Supreme Court wrote back in 1866. Ex Parte Garland, 71 U.S. 333, 380 (1866). That case involved a member of the Confederate Congress who, after the war, was barred from practicing law in federal courts. The Supreme Court described that as “punishment,” exactly the term that’s used to describe the jail or prison time that often accompanies convictions for drug offenses like simple possession of marijuana.
Importantly, Biden’s proclamation doesn’t apply to everyone. It applies to U.S. citizens and lawful permanent residents only. Anyone who was in the United States lawfully, but under some temporary status (e.g., to study or travel) isn’t eligible. Neither is anyone who was “not lawfully present” at the time of committing the offense even if they are now. The language here is worth examining closely. The way it’s phrased, I believe someone who had DACA at the time of committing the simple possession would be eligible for the pardon because DACA provides lawful presence. It wouldn’t apply to unauthorized migrants, though.
This is where things get messy. There are two ways for a drug conviction to pose a risk of deportation for an LPR. It could constitute an illicit trafficking offense, which is itself a type of aggravated felony under INA § 237(a)(2)(A)(iii), or it could constitute a controlled substance offense under INA § 237(a)(2)(B). The aggravated felony sounds worse, but a separate section of the INA says that § 237(a)(2)(A)(iii) “shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President.” That seems pretty clear.
The thing is that most people convicted of simple possession aren’t looking at an aggravated felony because of the way that immigration law defines illicit trafficking. Illicit trafficking includes crimes that are punishable as felonies under the federal Controlled Substances Act or involve commercial dealing. Surely some simple possession offenses fit one of those definitions, but plenty don’t. A lot of simple possession offenses result from what it sounds like: getting busted with the marijuana you hoped to use. Besides, many controlled substance offenses aren’t illicit trafficking aggravated felonies, but just about all illicit trafficking aggravated felonies are controlled substance offenses.
In many instances, LPRs with a simple possession conviction are going to be looking at deportation problems under the controlled substance offense provision at INA § 237(a)(2)(B). Unlike the aggravated felony basis of deportation, the pardon provision doesn’t mention the controlled substance offense. Congress apparently wanted to be sure that migrants got into immigration problems under the controlled substance offense provision even if they had been pardoned.
Would courts push back, saying that a presidential pardon ought to be the holy grail that Congress can’t limit? So far, they haven’t been willing to take that step. On the contrary, several courts have sided with the federal government’s consistent position that Congress constrained the help that pardons can offer migrants. Squarely considering this issue, the Board of Immigration Appeals, for example, concluded, “The plain language of the statute clearly states which grounds of removal are waived if a pardon is granted.” Matter of Suh, 23 I&N Dec. 626, 628 (BIA 2003). Had Congress wanted to add other crimes to the list, it could’ve. “Where such a provision is included in one section but not in another, it is presumed that Congress acted intentionally and purposefully,” the Board continued.
Other courts agree. Citing Matter of Suh, the Third Circuit adopted a similar position just last year in a case involving deportability under the INA’s controlled substance offense provision. That provision, the court explained in Aristy-Rosa v. Attorney General, 994 F.3d 112, 115 (3d Cir. 2021), “contains no pardon waiver. That is, Congress did not explicitly provide that a full pardon for a controlled substance conviction extinguishes the immigration consequences of that offense.”
In another case, a migrant who was convicted for committing possession with intent to distribute and possession of a firearm, then pardoned by the Georgia governor, could escape the aggravated felony basis of deportation, but not the controlled substance offense basis. Tetteh v. Garland, 995 F.3d 361, 366 (4th Cir. 2021). As the Fourth Circuit explained, the “pardon waives his aggravated felony conviction as a ground for removal, but not the other grounds.”
Meanwhile, the Ninth Circuit rejected a similar argument that pushed a bit further. In Aguilera-Montero v. Mukasey, the Ninth Circuit turned down an argument that a gubernatorial pardon should waive a basis of inadmissibility. 548 F.3d 1248 (9th Cir. 2008). Like the other courts, the Ninth Circuit read the INA’s pardon provision narrowly to waive only the enumerated list of bases of deportation which doesn’t include the controlled substances offense provision. This case is noteworthy because there the migrant presented an equal protection challenge too. Here again the Ninth Circuit said no. Comparing the controlled substances basis of inadmissibility to the aggravated felony basis of deportability is incorrect, the court concluded. Comparing the controlled substances basis of inadmissibility to the basis of deportability doesn’t support recognition of a waiver.
The big remaining question is whether courts think it matters that these cases deal with gubernatorial pardons of state crimes and Biden’s proclamation involves a presidential pardon of a federal crime. The caselaw on this is thin. An Office of Legal Counsel opinion from 1996 takes the position that a presidential pardon is broad in effect. In OLC’s view back then, a presidential pardon precludes deportation under any of the provisions that are now located at INA § 237(a)(2), including the controlled substances basis of deportation. An OLC opinion is important, but it isn’t law.
I haven’t thought through this bit sufficiently to offer a clear position, but my suspicion is that the Supreme Court would side with Congress here, pointing to two things. First, that immigration law is a form of civil law that isn’t reached so easily by a president’s decision to pardon commission of a crime, in this way distinguishing from that 1866 pardon of a lawyer that the court described as punishment despite his support for destruction of the United States. And, second, the explicit statutory text in the INA that limits presidential pardon authority regarding immigration law.
In the end, Biden’s proclamation is laudable, but likely not significant for many migrants.