By Jason A. Cade

This essay examines the immigration implications of President Joe Biden's Proclamation on October 6, 2022, which pardons most federal and D.C. offenders—including lawful permanent residents—who have committed the offense of simple marijuana possession. When used this way, the Art. II clemency power serves a communitarian, forward-looking function—in this case by giving legal effect to a societal recalibration of what constitutes appropriate punishment for marijuana possession and a growing awareness of the racially disproportionate impact that arrests and prosecutions for this crime tend to produce.

With respect to the impact of pardons on efforts to avoid deportation or to gain lawful admission to the United States, however, ambiguities lurking in the Immigration & Nationality Act (INA) raise unsettled complications. Through most of the nation’s history, both gubernatorial and presidential pardons effectively negated the effect of the pardoned crime for immigration purposes. Toward the end of the twentieth century, however, Congress muddied the waters by amending key provisions of the INA. These amendments, in turn, led the Board of Immigration Appeals (BIA) to infer legislative intent to make pardons ineffective in the immigration context, except with respect to four specifically-enumerated removal categories—which do not included controlled substance offenses. While the Supreme Court has not yet assessed these rulings, lower federal courts have deferred to the agency's interpretation.

University of Georgia School of Law Legal Studies Research Paper Series, 2022. 38p.