SSRN (pdf version) (posted here last November)

Here is the abstract:

“This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach. 

Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the courts thus far have concerned state prosecutions and gubernatorial pardons, such that governing federal law has been given preemptive effect. Whatever the merits of those cases, presidential pardons raise a specialized separation-of-powers problem in light of long-undisturbed precedent interpreting the Article II pardon power as immune from congressional constraint. Accordingly, noncitizens with pardoned federal marijuana possession convictions facing deportation should ultimately prevail. But the constitutional question need not be fully resolved. As I argue, there are reasons to doubt Congress in fact intended what the agency has inferred, and a reasonable alternative construction would give effect to President Biden’s drug-possession pardons while prudently avoiding the constitutional danger zone animated by the agency’s statutory interpretation. 

The Essay concludes with a set of considerations to which policymakers should attend as they contemplate the adoption of reformatory programs that impact immigration rules. Although the Biden Proclamation too-tightly cabins which noncitizens fall within its reach, it is a step in the right direction and may well foreshadow additional reforms, including future moves by legislative and executive branches at both federal and state levels.”

KJ