NY Plan to Consider Pardons for Immigrants Facing Deportation May Shift Immigration Debate

New York Governor David Paterson

New York Governor David A. Paterson

New York Governor David A. Paterson announced on Monday that he will create a five-member state panel to review cases of legal immigrants seeking pardons for old or minor criminal convictions. The idea is to stop these immigrants from being deported by speeding up the consideration of their pardons. Paterson’s action comes on the heels of Arizona’s law to criminalize undocumented immigrants, and proposals in Congress to increase border security.

Feet in Two Worlds wanted to understand more about the governor’s plan, and its place in the national debate over immigration policy.   We turned to Muzaffar Chishti, Director of the Migration Policy Institute at the NYU School of Law. His work focuses on US immigration policy, the intersection of labor and immigration law, civil liberties, and immigrant integration.

Fi2W: Governor Paterson’s move comes as the nation is still reacting to Arizona’s new law, but it’s coming from a completely different mentality. While Arizona is accelerating deportations, New York is now acting to prevent them.

MC: These are two very different sets of laws. From what I understand, Paterson’s proposal has been in the works for some time, and to the extent it’s linked to anything, that’s the pardon of Qing Hong Wu. It’s also quite different from Arizona’s law because its not trying to prevent the deportation of illegal immigrants. It would only apply to legal immigrants who have been harshly subjected to a set of rules since 1996, while Arizona is obviously targeting undocumented immigrants, on the streets, with no criminal history. So the parallels are not really that apt. But having said that, I think it is a very creative intervention of a state authority.

Fi2W: How so?

MC: We have never liked criminals, obviously, throughout our immigration history. But until 1996, our immigration law allowed for the deportation of only a very small, narrow group of criminals. The definition of an “aggravated felon” was like one paragraph. There are about 33 paragraphs in that statute today. We expanded the list of people we consider “aggravated felons” to those guilty of a whole bunch of non-violent crimes, and to people who committed them a long time ago, because 1996 made it retroactive. So the harshness was introduced in 1996.

I think almost everyone acknowledged that in some cases this was just too harsh, because it did not consider issues of rehabilitation, for people who completely changed their lives—even when people on whom these crimes had been committed came to their defense.  It was a very restrictive, non-waiveable set of offenses. You are an aggravated felon because you committed a state crime for which you could be in prison for more than one year—that’s the most simple definition. So if you committed shop lifting, and you could have been in prison for over a year, even if you didn’t serve a single day, [the 1996 law] turned it into an aggravated felony.

It’s the state crimes that get you onto the list. The only people who can remedy this are the state authorities—the governor can issue a pardon and get you off the list.  That gives you the right not to be deported. [Paterson’s] not creating a new remedy—all he’s doing is speeding up the process of evaluating those pardon requests.

Fi2W: But critics are saying this 5-person panel is potentially going to allow citizenship to thousands of criminals in New York State. Is this a bad precedent?

MC: It’s the same reason we allow governors to pardon people from Death Row. It’s extremely rare that a governor grants a pardon. They take it very seriously, it’s used in circumstances that demand exceptional consideration, and there’s no reason to believe that everyone who is an aggravated felon is going to get a pardon. The good thing about a pardon is that you reassess the nature of the crime, you access the circumstance, and then assess the positive equities and you draw a balance.

We hope it will be used only in highly meritorious cases, like that of Qing Hong Wu. If you took that case to almost any judge in the country they’d say this guy deserves consideration. So that’s the kind of case we hope this process will produce. It’s a far cry from saying that every murderer walking in the street is now going to become a citizen.

Fi2W: Do you think this could affect federal immigration policy? Is it likely to become part of the debate, which up to now has largely been dominated by security concerns?

MC: It may affect the legalization program of the 12 million people who would normally be legalized under comprehensive immigration reform. Normally the fact that you have an aggravated felony would automatically bar you from getting legalized. This policy may create a hiccup—it shakes up the disqualifying criteria. The federal government may rethink this issue in the context of the legalization program, because that will be the point in which it could affect a large number of people. They may say, well, we will not let states decide what crime is an aggravated felony.  Or they may say we’ll give people 6 months to seek pardons, etc.  There will be pressure to do something for the undocumented population. Any of those things are possible fallout from this.

Fi2W: Would you say this is a really significant move by New York State?

MC: I think it’s a very creative and fair way of dealing with the harshness of the 1996 statutes which gave no discretion. In the past what happened is if you committed a crime you would go in front of a deportation judge, and the judge would make an analysis of your life. That discretion was taken away from the judges in the nineties. This restores a sense of balance to the harshness of those measures of 1996, and does it hopefully in a more efficient way, of giving discretion to those who deserve it, and not to those who are serious criminals.

Fi2W: You said this isn’t connected to the Arizona law, but it is another case of states stepping into immigration policy—ostensibly the territory of the federal government. What are the implications of this? Is it dangerous, is it positive, or both?

MC: I think it’s completely determined by law. [Paterson’s] not doing anything about immigration law, he really isn’t. He’s just pardoning a state crime, which a governor has always had the right to do. It was a state crime that triggered the removal. But the debate going on right now about state government and federal government in immigration law is a question of federalism. Arizona is entering a difficult category of states and localities enforcing federal immigration law, which because of our doctrine of preemption, most of us believe is preempted. [Paterson’s proposal] is not a question of federalism. If you do a straight legal analysis, it does not muddy that water, it’s just muddying the political water. His motivations may have been different, but on the law he’s just managing a state issue.

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