In comparison to Arizona’s S.B. 1070, a state law that attempts to make the enforcement of immigration violations a state function, New York’s governor, David Paterson, has modeled a way that states can impact immigration matters in a constitutionally permissible way.
Some basic background information: Criminal law in the United States exists at both the federal and state level. There are federal crimes and there are state crimes. People living in the United States who are not U.S. citizens (even long-time legal permanent residents) can be deported if convicted of certain crimes, including state criminal convictions. A pardon, however, can often erase the effect of that conviction for immigration purposes.
A pardon for a state criminal conviction is squarely within the authority of the state governor. In an effort to prevent the deportation of individuals who have, since their convictions, transformed themselves into worthy and contributing members of society, Gov. Paterson has set up a panel to review these cases for eligibility for pardon. For most if not all of these individuals, this is their only chance, under current immigration law, to stay in the United States, where they have lived most of their lives and where they have established families and become part of their local communities. In some cases, individuals have already served out their criminal sentences but still face deportation.
A spokesperson for the Federation for American Immigration Reform (FAIR), a group that favors reducing immigration levels, responded to this initiative by stating, “as a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country[,]“ and further, that the Governor was “circumventing Congressional authority.”
Let me address each point raised by FAIR in turn.
The first objection is that anyone who has been ordered deported, regardless of their current circumstances or the harshness of the penalty on the individual, should be deported. This hard-line position does not care about individual circumstances. Every deportable alien is a throwaway person, not deserving of case-by-case treatment. This position cannot take into account the benefit that the individual might bring to the community in which he or she now belongs, or the cost and pain associated with tearing that individual away from that community. It reflects an attitude that rules must be blindly and rigidly applied and should always be bright-line and clear, black and white. Basically, “You break the law, you’re out of here.”
So, how has this approach worked for us in our schools, with our Zero Tolerance policies? Every week, I read of some new ridiculous school action driven by zero tolerance philosophy that punish the very children that it is supposed to protect. The kid whose grandmother packed him a knife to cut his birthday cake who ran afoul of a no-weapons policy comes to mind, and there are countless other examples. Children end up suspended or expelled because of actions that happen to fall within the zero tolerance zone, but who were never intended by the original proponents of the rules. Applying the same thinking, that is, if-they’re-deportable-then-let’s-deport-’em approach, we end up deporting people who might remain in the country by way of a gubernatorial pardon. These individuals may be legitimately deportable but they also have a legitimate shot at changing their eligibility for deportation. There is nothing inherently wrong with exploring an available legal option.
As for the second objection, that Gov. Paterson is circumventing federal congressional authority, I wonder if FAIR raised this same objection to AZ S.B. 1070?
Most if not all state constitutions grant governors the authority to issue pardons and don’t place too many restrictions on how they can use this power. This is a provision meant to inject flexibility in what might be otherwise inflexible situations. Gov. Paterson is well within his authority to choose to exercise this authority generously. Federal immigration law does not forbid state governors from exercising their right to pardon individuals for state criminal convictions and any attempt to do so would be a violation of states’ rights.
For FAIR to say that Gov. Paterson’s actions circumvent congressional authority, well, this is just not true. What FAIR really means, I would hazard, is, “We don’t like it when government acts to help immigrants who have shown themselves to be unworthy.” Of course, it doesn’t seem to matter to FAIR what the overall weight of an individual immigrant’s conduct over his or her lifetime might be, just that that person landed himself or herself in jail in the first place. Following this philosophy, we really need to build a lot more prisons (I think the prison lobby has this well in hand), because there should be a lot more people in prison and who should be kept in prison for the rest of their lives because at some point they did something bad, hurt someone, and broke the law. No one is salvageable. Everyone must pay for their mistakes, and keep paying until they are dead or gone.
From my point as view as an immigration lawyer, I respectfully suggest that this zero tolerance approach is not wise nor humane. For those of you who subscribe to the FAIR philosophy, I urge you to acknowledge that when we talk about immigrants we are dealing with fully-fledged human beings, not just ‘aliens.’ A person can do bad things and yet become a good person. Some of these individuals have already served out their sentences. Should they keep on paying for their mistake after they have already paid? Sometimes second chances are warranted. Deportation for those who only know America as their home can be a harsh fate, and hurts not only the deportee but their family members too. No one is arguing that every immigrant convicted of a crime should be pardoned. Rather, Gov. Paterson is employing an approach that weighs the individual’s crimes against his good deeds. The pardon power is already embedded in the state constitution, and is a far cry from a circumvention of congressional authority. Rather, it is the valid exercise of state authority that happens to affect immigration status.
Djung Tran, Esq.
834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933