In my last post, I noted that California Gov. Gavin Newsom (D) has issued pardons to six aliens convicted of drug-trafficking crimes who are facing removal, and explained that those pardons raise some unresolved issues involving the interpretation of the Immigration and Nationality Act (INA). That raises a separate question: whether the administration of President-elect presumptive Joe Biden will allow ICE to raise those issues, and how the Supreme Court will rule on them — if it gets the chance.
Newsom's pardons did not go into depth concerning the immigration status or even the specific laws that each of the six were convicted under. As I explained in my earlier post, however, each appears to be an alien facing removal on aggravated-felony and controlled-substance grounds, and that some, most, or all of them may be seeking cancellation of removal under section 240A(a) of the INA (42A cancellation) or some other immigration relief.
Pursuant to that provision, a lawfully admitted alien convicted of violating "any law or regulation of a State ... relating to a controlled substance" as defined by the Controlled Substances Act (CSA) as "other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable." Section 237 of the INA does not explicitly state that a pardon has any effect on removability for a conviction under that provision, as it does for other grounds of removability.
I noted that in a 1956 case, Matter of H-, the BIA held that a pardon issued to the respondent there for a conviction that did not affect her deportability "immunized [her] from all consequences flowing from that act" — specifically the bar to "good moral character" in section 101(f)(7) of the INA — that would have prevented her from receiving relief under a now-stricken provision of the 1952 version of that act.
As I explained, the viability of that decision is called into question by Matter of Suh, and therefore likely does not prevent ICE from alleging that (1) the six aliens pardoned are still removable (just not on aggravated felony grounds); and (2) they are not eligible to apply for 42B cancellation (or any other relief to which an aggravated felony conviction is a bar).
The question now, however, is whether the administration of President-elect presumptive Joe Biden will allow ICE to charge those aliens under section 237(a)(2)(B)(i) of the INA, and if it does, allow ICE to argue that the aliens are barred from such relief.
This is not as simple a question as it may appear. On the campaign trail, the former vice president vowed a 100-day moratorium on all removals, and then only to remove aliens who have been convicted of (undefined) felonies in the United States.
That would follow a practice adopted in the Obama-Biden administration to "prioritize" which removable aliens would actually be arrested, charged, and removed from the United States, enshrined in various memorandums, the last of which was issued by then-DHS Secretary Jeh Johnson in November 2014.
Notwithstanding the fact that the grounds of deportability in section 237 of the INA are written in mandatory terms ("Any alien ... in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens." (Emphasis added.)), it is possible that neither Congress nor anyone else has the ability to enforce that provision.
In order to enforce a law in the federal courts, a party must have "standing", that is the "capacity ... to bring suit in court". The Supreme Court in 1991 set out a three-part test to determine whether a party has such standing.
"First, the plaintiff must have suffered an injury in fact" — that is "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not 'conjectural' or 'hypothetical''. To be "particularized", that "injury must affect the plaintiff in a personal and individual way."
"Second, there must be a causal connection between the injury and the conduct complained of." Such injury must "be fairly traceable to the challenged action of the defendant, and not" result from "the independent action of some third party not before the court."
Third, that injury "must be 'likely,' as opposed to merely 'speculative,'" such "that the injury will be 'redressed by a favorable decision.'"
Would a party (including Congress generally or an individual senator or representative) suffer an "injury in fact" if the Biden administration were to not place an otherwise removable alien in removal proceedings? Good question. Article II, section 3 of the U.S. Constitution states that the president "shall take care that the laws be faithfully executed." If the president were to fail to do so, would the courts find standing based upon an "injury in fact"? Another good question.
No citation is needed to support the proposition that the federal courts have found that a number of different parties (including the several states) had standing to block various Trump administration immigration initiatives. In most of those cases, the plaintiffs in question could point to a specific injury that they would suffer (some more attenuated than others). Who would be injured by a President Biden's refusal to deport a specific alien or even a specific class of aliens?
That question is answered by the willingness and skill of a potential plaintiff, and the specific court's inclination to allow a suit to be brought. I am not aware of a single case that ever successfully challenged then-Secretary Johnson's prioritization policies, and expanding standing is a slippery slope that could hamstring a future administration's efforts to enforce the immigration laws.
Of course, even if ICE could proceed in these six cases with charges and an argument against the respective respondents' eligibility for relief, it would then fall on the BIA to extend its holding in Matter of Suh. If it did so, then the attorney general (AG) could always get involved, asserting his or her certification authority.
That AG could always fall back on Matter of H- to not only overrule Matter of Suh (and any extension of that decision), but further to find that a pardon effectively wipes away the immigration consequences of a state-court conviction.
Let's assume, however, that ICE is allowed to prosecute these six aliens in removal proceedings, that the BIA extends Matter of Suh, and that the aliens file petitions for review in the circuit courts. The AG would have sway over the extent to which his or her civil litigators in DOJ's Office of Immigration Litigation push forward the BIA's decisions and the logic thereof. The AG may be leery of interfering with career attorneys in the department. But maybe not.
Eventually, one or more of these cases may make its way to the Supreme Court, and there it gets interesting. From the opinions authored by each that I have reviewed, I personally would deem Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett to be "textualists", in this case meaning that they would focus their determinations of these issues on the actual text of the INA. How would that affect those determinations?
Again, Congress has given effect to pardons in section 237(a)(2)(A)(vi) of the INA for removability under sections 237(a)(2)(A)(i) through (v) therein, but not for the removability ground for controlled substance convictions in section 237(a)(2)(B)(i) of the INA.
Moreover, the effect of pardons is not mentioned in connection with the definition of "conviction" in section 101(a)(48) of the INA, nor is there reference to them in the bar to 42A cancellation in section 240A(a)(3) of the INA for aggravated felony convictions.
Judges and justices usually interpret otherwise vague statutory provisions under the so-called "canons of construction". Two of them would come into play here: the omitted-case canon (casus omissus pro omisso habendus est), pursuant to which "a matter not covered is to be treated as not covered"; and the negative-implication canon (expressio unius est exclusio alterius), where "[t]he expression of one thing implies the exclusion of others."
Applying these canons, Congress's failure (or refusal) to give effect to pardons in other sections of the INA would suggest that it limited the effect of pardons to those provisions in which it did give them effect.
But needless to say, that is just a guess about what the High Court could potentially do (and the make-up of that Court should any or all of these cases be presented to it). That said, these are questions that some adjudicator (BIA, AG, circuit court, or Supreme Court) will have to rule on at some point.
If, as in Matter of H-, pardons wipe away all immigration consequences of a conviction, nothing would stop Gov. Newsom — or any other governor, or even the president — from issuing a blanket pardon to all aliens removable on criminal grounds. That is unlikely for a variety of reasons, but it would give significant power over what is an intrinsically federal issue (immigration) to state officers.
If, however, pardons are limited in their effect (as per Matter of Suh), Congress could always fill the gap, and expand the grounds of removability and relief to which pardons apply. Nothing stops it from doing so today, or in the 117th Congress, or at any point thereafter.
There are a lot of "ifs" in this post, because there are a lot of unknowns (not least the specific convictions of the six pardoned aliens and the make-up and inclinations of a potential Biden administration). We might never hear of these aliens again. Or they may well appear in the caption of a precedential decision from our highest court.