#ImmigrationWatch2017 | Topic #2: Immigration Attorney Opinion: A Presidential Pardon is NOT going to protect illegal immigrants from a Trump administration.
Lately, there has been a lot of talk that President Obama may issue a pardon for certain immigrants present in the U.S. illegally before he leaves office to protect them from deportation. Much of this talk has centered around DACA recipients and other undocumented immigrants who have no criminal history and other positive good moral character traits. The idea is to protect these people from deportation at the hands of the incoming Presidential administration, an action of which is promised by President-Elect Trump, although it is unclear as to what extent he will carry out deportations when he takes office next year.
A presidential pardon can forgive an individual accused or convicted of committing certain federal criminal offenses. Can the President forgive violations of the Immigration and Nationality Act (INA), a civil statute? If yes, is it constitutional issue such a broad pardon?
For argument’s sake, let’s assume that a presidential pardon of immigrants illegally present in the United States is Constitutional (an issue outside the scope of this post, and as this author will explain, an issue that need not be addressed at all). What really matters here, is will Obama be able to protect illegal immigrants from being kicked out of the United States by pardoning certain immigration violations?
In this Immigration Attorney’s opinion, probably not. The problem is, even if President Obama can issue pardons to specific undocumented individuals in accordance with his constitutionally delegated powers, he does not have the authority to grant anyone legal status without Congress passing legislation, and The White House has repeatedly stated that it will not violate the Constitution in this respect. So why will this not work without Congress?
Let's break down the definition of an "illegal immigrant" in order to better understand the issues at play here. There are two main aspects to legal status in the United States: the entry and the period of authorized stay.
To enter the United States legally as a non-citizen, one must present a valid travel document at the border (generally in the form of a visa). Every nonimmigrant or immigrant admitted to the United States is given a specific period of time that he or she can legally remain in the country before he or she must depart.
Depending on the type of visa, the period of authorized stay will be based on time and/ or compliance with certain terms (for example, a person who enters the U.S. with a F-1 student visa will be authorized to remain in the U.S. for the duration of status (D/S), as long as he or she complies with the terms of the F-1 visa, he or she will be in status without respect to how long he or she is here. While a person who enters the U.S. with a B-1/B-2 Visitor Visa is given a specific date to depart the U.S. on (usually 6 months from entry).
With that in mind, here is an example of how such a pardon would play out in the real world:
Person X, a non-U.S. Citizen, illegally crossed the U.S. border without authorization in 2002;
Entering the United States Without Inspection (EWI) means that X can be found in violation of Immigration and Nationality Act (INA) § 212(a)(6)(A), for being present in the United States without admission or parole;
President Obama issues a presidential pardon for anyone who entered the United States in 2002 and is removable from the United States under INA § 212(a)(6)(A);
So X’s EWI is now forgiven by the presidential pardon.
But what does this actually mean for X, specifically X’s immigration status in the United States?
It means nothing. Such a pardon does not confer any lawful status on X, nor does it prevent a future administration from placing X into deportation on some other grounds, and arguably even the same ground, because even with the pardon, technically everyday that X remains in the United States, he is continuously violating U.S. immigration law.
There are other issues with granting a Presidential Pardon to illegal immigrants, but the other issues need not be addressed at this time, because it is irrelevant in light of the fact that such a pardon would not be able to accomplish the underlying goal of protecting illegal immigrants from deportation and/ or grant them legal immigration status.
Immigrant advocates should place their emphasis on alternative protections.
*If you need help remaining in the United States or obtaining lawful status, contact us today to find out if we can help.*