USA TODAY International Edition

Pardons for undocument­ed immigrants?

Some Latino advocates may push Biden to act

- Dennis Wagner

In his first days in office, President Joe Biden moved swiftly to deliver on promises to Hispanic voters, signing a directive to protect “Dreamers” from deportatio­n and unveiling an outline for sweeping changes to immigratio­n laws.

Tuesday, the president announced a task force to reunite families separated at the border and an executive order that reviews a Trump administra­tion policy requiring migrants seeking asylum to wait in Mexico while they plead their case.

But executive actions are not permanent, and the White House already has begun tamping down hopes for passage of an omnibus reform measure.

That leaves some Latino advocacy groups looking at an untested fallback plan: a mass presidenti­al pardon for at least some of the estimated 11 million people in the country illegally.

“We believe this is a viable option if the Senate fails to act on comprehens­ive immigratio­n reform,” said Domingo Garcia, president of the League of United Latin American Citizens.

Hector Sánchez Barba, executive director at Mi Familia Vota, said congressio­nal action is the top priority, and Biden has put forth “the most progressiv­e plan I’ve seen, probably in our history.”

But if Congress fails to reform immigratio­n laws, he said, “I am in an action mode. … We will advocate for anything that reverses the extremism and damage” of the Trump administra­tion.

It is unclear how Biden would respond if pressed to pursue a mass pardon. Moreover, not all immigrant rights advocates want to pursue that controvers­ial path while there is a chance Congress could act.

Jorge Loweree, policy director with the American Immigratio­n Council, said a presidenti­al pardon for immigratio­n violators falls short because “it wouldn’t put people on a path to citizenshi­p; it would just cure one of the barriers to getting there.”

The clemency propositio­n is not new. In late 2016, before Trump was inaugurate­d, Garcia and others feared

the new president would launch draconian deportatio­ns of undocument­ed immigrants – especially those brought to the United States as children, called “Dreamers” based on never- passed proposals in Congress called the DREAM Act.

Dozens of advocacy groups and at least three Democrats in Congress implored then- President Barack Obama to issue last- minute amnesty. In a letter to the president, Rep. Zoe Lofgren of California and her colleagues described the proposed pardon as “a matter of life and death” for many of the nation’s 11 million undocument­ed immigrants.

Obama denied the request. And Trump carried out his promised crackdown.

Undoing Trump’s policies

Trump’s promise of a border wall was the hallmark of his first presidenti­al campaign. In office, he tried to end the Deferred Action for Childhood Arrivals ( DACA) program, which allows people brought to the U. S. as children to remain in the country, but he was largely blocked by court rulings. As part of a “zero tolerance” policy for illegal entry, children were separated from parents at the southern border. The administra­tion tried to prevent most migrants from claiming political asylum and required those seeking asylum to wait in Mexico.

Cut to 2020 and Biden’s platform was the polar opposite: He vowed to stop constructi­on of Trump’s southern border wall, protect “Dreamers” and overhaul U. S. immigratio­n laws that have not changed significantly in three decades.

On his first day in office, Biden signed an executive memorandum reinstatin­g DACA and unveiled a sweeping immigratio­n reform package. Under that proposal, agricultur­al workers, people who arrived illegally as children and immigrants with what is known as temporary protected status would immediatel­y qualify for green cards – giving them legal status and a right to work. Other undocument­ed immigrants in the United States as of Jan. 1 would receive temporary legal status for five years, with a path to citizenshi­p if they passed background checks and paid taxes.

Sen. Chuck Grassley of Iowa, a Republican who had supported a bipartisan immigratio­n reform plan, ripped Biden’s legislativ­e plan as “mass amnesty” – the exact words used by Trump loyalist Sen. Josh Hawley, R- Mo.

Meanwhile, congressio­nal Democrats who once pushed Obama to pardon “Dreamers” went silent.

Lofgren, a former immigratio­n attorney and the most recent chair of the House Judiciary Subcommitt­ee on Immigratio­n and Citizenshi­p, declined to comment on whether she may ask Biden to use his pardon power.

In a written statement, she said she’s focused on working with the president “to advance our shared bold vision to reform our country’s immigratio­n system.”

Other members of the House and Senate did not respond to emails and calls, nor did the White House.

A constituti­onal ‘ gray area’

On Jan. 21, 1977, more than 570,000 American offenders received pardons.

It was the first full day in office for President Jimmy Carter, and he used it to grant amnesty to Vietnam- era draft dodgers. Nearly 210,000 had been charged with violating the Selective Service Act. Another 360,000 dodged but were not prosecuted.

Article II, Clause 1 of the Constituti­on is terse and clear: “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachmen­t.”

The authority covers all violations of federal law and may be used absolutely or conditiona­lly, according to Cornell University Law School’s Legal Informatio­n Institute. It includes a presumed power “to pardon specified classes or communitie­s wholesale, in short, the power to amnesty.”

Draft dodgers were nowhere near the first to benefit from mass clemency. Three years earlier, President Gerald Ford granted a conditiona­l pardon to military deserters who were willing to perform public service.

In fact, presidents throughout history granted amnesty to large groups, beginning with the first pardon issued by George Washington in 1795 to participan­ts in a tax revolt known as the Whiskey Rebellion.

Andrew Johnson gave amnesty to all Confederat­e soldiers after the Civil War. And, in 1902, Theodore Roosevelt granted amnesty to residents of the Philippine­s – then a U. S. territory – who took part in an insurrecti­on.

Yet, according to legal experts, no president has ever pardoned someone for illegal immigratio­n during the nation’s 245- year history.

Pardons historical­ly have addressed criminal violations; entering or being in the country unlawfully is a civil offense unless it’s a repeat violation.

Peter Markowitz, a professor at the Cardozo School of Law, acknowledg­ed it’s a legal “gray area.” But he said immigratio­n violations – civil or criminal – clearly constitute offenses, and there is “ample reason to believe it is within a president’s pardon authority.”

In a 2017 law review article co- written with Lindsay Nash, Markowitz advocated just such an action, writing: “The President possesses the constituti­onal authority to categorica­lly pardon broad classes of immigrants for civil violations of the immigratio­n laws and to thereby provide durable and permanent protection­s against deportatio­n.”

Other experts say it’s not so clearcut, especially without any Supreme Court precedent on pardons for civil offenses. Some argue that a person in the United States illegally commits an ongoing violation. Pardon power may not be exercised to erase future offenses.

Markowitz conceded that executive clemency is an “imperfect solution” because, while it would protect undocument­ed immigrants from deportatio­n, it would not grant legal status or rights.

“Everybody would prefer that this type of durable protection be delivered through legislatio­n,” Markowitz said. But if that proves impossible, clemency at least gives undocument­ed immigrants peace of mind that they can’t be deported.

‘ We knew what was coming’

Despite legal uncertaint­ies and a likely political backlash, Markowitz suggested using pardon power for immigrants would have been worth it four years ago.

In a 2016 opinion piece, Raul A. Reyes, an immigratio­n attorney and member of USA TODAY’s board of contributo­rs, argued that by inviting young “Dreamers” to sign up for DACA, Democrats later exposed them to deportatio­n under the Trump administra­tion.

“It would be a cruel irony if Obama were to turn his back on those here illegally – through no fault of their own – after he helped expose them to risk of deportatio­n,” he concluded.

David Leopold, immigratio­n counsel for America’s Voice, which advocates a path to citizenshi­p for undocument­ed immigrants, said it made sense to consider amnesty at the close of Obama’s presidency because Trump had characteri­zed immigrants as criminals.

“We knew the extremism. We knew the xenophobia. We knew what was coming,” said Leopold, who was a volunteer adviser in the Biden campaign.

But as Biden’s presidency begins, Leopold does not see presidenti­al pardon power as a serious considerat­ion because about 80% of Americans favor changes in law to protect undocument­ed immigrants who came to the United States as children.

“The answer right now is legislativ­e,” Leopold said. “There’s a moment in history right now when we can do it. … Hopefully, Congress will step up to the plate.”

Doris Meissner, former commission­er of the Immigratio­n and Naturaliza­tion Service, said it would be a legal and political stretch for Biden to simply pardon people who entered the United States unlawfully – a “very out- of- theblue propositio­n,” as she put it.

“I’m just having a hard time figuring out how the pardon power … could be justified for that,” said Meissner, now a senior fellow at the Migration Policy Institute.

A ‘ huge overreach’?

Ira Mehlman, media director with the Federation for Immigratio­n Reform, which advocates for strict immigratio­n enforcemen­t and controls, said mass clemency would constitute a “huge overreach” by the president.

In a podcast four years ago, he noted, Cecilia Muñoz, then director of the Obama White House’s Domestic Policy Council, declared that pardons “wouldn’t protect a single soul from deportatio­n.”

Some immigrant rights advocates also resist talk of amnesty, at least for now, for fear it would undermine the push for legislatio­n.

Kristian Ramos of Autonomy Strategies, a communicat­ions firm specializi­ng in Latino issues, said Biden’s executive order protecting DACA recipients and immigrants in temporary protected status has, for now, solved the most pressing problem.

“They’re protected,” Ramos said. “He has essentiall­y provided the … reprieve that he could. There’s no real need to pardon them.”

Juliana Macedo do Nascimento, a DACA recipient from Brazil and policy manager with United We Dream, declined to address the amnesty question in a written statement.

Instead, she stressed that Biden and Democrats “have a mandate from the people” to transform America’s immigratio­n system. “President Biden must use every tool at his disposal to provide relief for as many people as possible,” she said.

“We are tired and not satisfied by executive actions,” said Fernando Garcia, executive director with Border Network for Human Rights. “We need to actually change the law.”

Promises made

Garcia expressed doubt that Biden would consider amnesty even if legislatio­n fails. “I don’t think it’s realistic that any president is going to say, ‘ We’re going to pardon 600,000 Dreamers or 1.2 million Dreamers,’” he said. “And I don’t believe Dreamers are guilty of any offense.”

Loweree, with the American Immigratio­n Council, said America’s support for “Dreamers” is higher than ever, and the president has a “unique opportunit­y” to fulfill campaign promises. He said he doesn’t buy into claims that Biden has a debt to Hispanics who helped him get elected. “The issue here isn’t who owes anyone anything,” he said.

Rather, it’s about fulfilling a promise made in the Obama administra­tion.

“‘ Dreamers’ who came out of the shadows and signed up for DACA were told they’d be protected and allowed to work, not deported.”

With that in mind, Loweree suggested talk of presidenti­al amnesty cannot be dismissed entirely: “We expect President Biden will do everything in his power – and consider all options.”

 ?? DAVID J. PHILLIP/ AP ?? Diana Jung Kim, right, and Homer Carroll hug during a 2018 protest outside the U. S. Border Patrol Central Processing Center in McAllen, Texas.
DAVID J. PHILLIP/ AP Diana Jung Kim, right, and Homer Carroll hug during a 2018 protest outside the U. S. Border Patrol Central Processing Center in McAllen, Texas.
 ?? AP ?? President Jimmy Carter extended a pardon to more than 200,000 Vietnam anti- draft resisters in 1977.
AP President Jimmy Carter extended a pardon to more than 200,000 Vietnam anti- draft resisters in 1977.

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