A creative plea from immigrants, and a ticking clock for Obama

By Caitlin Dickerson, New York Times News Service

Thursday, Dec. 22, 2016 | 2 a.m.

ALAMANCE COUNTY, N.C. — Confronting a tight deadline and armed with a creative legal argument, immigration advocates have made a final plea to President Barack Obama to shield up to 200,000 legal immigrants with minor criminal records from deportation.

Drawing on constitutional framers including Alexander Hamilton, a group of more than 100 advocacy organizations wrote to the president on Tuesday arguing that he is constitutionally empowered to protect some green card holders with minor criminal records by exercising his pardon power before he leaves office.

They first made the argument in a memo sent to the White House earlier this month.

The advocates say this would be a historic first; pardon power has never been used with immigration law violations. By doing so, they argue, Obama could reframe his legacy on immigration, adding a triumph after he failed to address the issue of the vast majority of the country’s 11 million undocumented immigrants and instead earned the nickname “deporter in chief” for expelling more people than any other president in history.

“President Obama has repeatedly promised throughout his presidency to do everything in his legal power to make our immigration system more humane,” said Peter L. Markowitz, a professor at the Benjamin N. Cardozo School of Law, who helped draft the memo to the president. He added that the immigrants who would benefit from the pardon were those whom President-elect Donald Trump “has been crystal clear he will be targeting on Day 1.”

The group consists of 100,000 to 200,000 legal permanent residents, also known as green card holders, with two or fewer misdemeanor convictions for crimes like petty theft or marijuana possession that render them deportable under federal immigration law.

While they are a small group relative to the millions of immigrants whom Obama sought to protect with executive actions that were blocked by a federal court, Markowitz said the pardon would shield some of the most vulnerable: those who constitute the “lowest-hanging fruit” because the government knows who they are and where to find them.

They are among the few categories of immigrants who, it appears, would be treated differently by Trump because they fall outside Obama’s immigration priorities, under which the Department of Homeland Security has already pursued most immigrants with criminal convictions. By comparison, Trump has said he will expel any immigrant with a criminal record.

Obama could issue the pardon any day until he leaves office. A spokesman confirmed that the White House had received the request but said, “As a general matter, we do not comment on the likelihood of whether a specific pardon may be granted.”

The pardon would not absolve the immigrants of their crimes, or of punishments imposed in criminal court. Instead, it would eliminate the civil immigration violations that follow when noncitizens break the law. It is the civil violation, not the criminal one, that makes an immigrant deportable.

In the past, presidents — including Obama — have pardoned immigrants for federal criminal convictions, that way shielding them from deportation. But the immigrants that advocates are now asking Obama to help were convicted of violating state laws, which the president cannot pardon.

The legal reasoning behind the proposal is linked to the initial writing of the Constitution’s pardon clause. The clause has been used almost exclusively for criminal convictions, not civil ones like immigration violations. But the advocates argue that when the Constitution was drafted, the distinction between criminal and civil law was less clear, and that pardon power has been used to dismiss offenses that would constitute civil violations under today’s standards.

In Alamance County, North Carolina, a rural, predominantly white community near the Virginia border, with a sleepy main street lined with American flags and “We Support Blue” banners, noncitizens are particularly on edge about the transfer of power to Trump.

Immigrants and law enforcement officials here clashed publicly in 2012 when the Justice Department sued the sheriff’s office over allegations of racial profiling and discrimination against Latinos. The department was cleared of all charges in the case.

Sheriff Terry S. Johnson, who led the department during the lawsuit and is still in office, is now running to become a federal marshal, a position for which he would be appointed by Trump and confirmed by the Senate. He said he thought the Obama administration had not deported enough immigrants, but he acknowledged that the moral question raised by the pardon request was not easily answered.

Johnson said he had “zero tolerance” for immigrants who were convicted on drug charges because drug-related crime had ravaged his community in recent years. “If they’re caught and it’s a felony amount of drugs or a small amount, they need to be in the deportation process,” he said. But he added that he thought immigrants convicted of crimes such as a single misdemeanor theft could be “viewed through a different light.”

Liz, 31, who asked to be identified only by her first name because of her precarious legal status, has one of each type of conviction.

When she was a teenager, an uncle who needed money told her to return a picture frame to T.J. Maxx but did not tell her that he hadn’t bought it there. She was caught and convicted of fraud.

A few years later, she said, a friend asked if he could have a pair of boots sent to her address. She agreed, and when she arrived to pick them up, the police were there and confiscated the package, which contained drugs. She was convicted again.

Liz is now married with three children and works at a domestic violence shelter for women. She said of the immigration consequences she could face because of her criminal record, “Mistakes in life have to be looked at case by case.”

She said of the choice before Obama, “I think God has given me the strength to accept whatever decision he makes.”