Cancelling Immigration Removal Orders Through Clemency

Last week I attended a clemency hearing before the Prisoner Review Board (PRB). As I waited for my client’s case to be called, I listened to the case of a man who’d lost his Green Card some years back and was now facing deportation because of an old felony drug conviction.

Although federal immigration authorities ordered the man deported in 2006, at that time his country of origin did not honor such requests. A year or so ago, immigration authorities notified the man that it was renewing its efforts to deport him.

The Case of Miguel Perez Jr.

As I listened to the man’s case, I couldn’t help but think of the 2019 well-publicized case of Miguel Perez Jr., an Army Vet, who was deported to Mexico in 2018. Mr. Perez had lost his Green Card some years earlier following a felony drug conviction that sent him to prison.

Mr. Perez petitioned for clemency around the same time I was representing a clemency client facing an order of removal due to a non-drug felony conviction. I became aware of Mr. Perez’s case because it received significant media attention.

I remember being perplexed that Mr. Perez was petitioning for clemency, having just reviewed the rules pertaining to when a governor’s pardon can cancel an immigration removal order.

Under the U.S. Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., Congress excludes serious drug offenses from the list of crimes eligible for relief from deportation if someone receives clemency (or a pardon) for his or her crime.

Thus, I wasn’t surprised when then Gov. Rauner denied Mr. Perez’s petition and he was deported. Mr. Perez’s story didn’t end there.

Earlier last year, Mr. Perez filed a second petition for clemency. In August Gov. Pritzker, using his clemency authority for the first time, granted Mr. Perez’s request for clemency. Not long after that, Mr. Perez returned to the U.S. and immigration authorities canceled his removal order.

An Immigration Law Turned on its Head

Not being an immigration attorney, I sought an explanation for the government’s decision to let Mr. Perez return.

In October, I found myself at a meeting where most of the people present were immigration practitioners. I turned to the attorney on my left and asked her to explain why Mr. Perez’s removal order had been canceled.

She responded: “Beats me. Your guess is as good as mine!”

She went on to say that it had been a hot topic of discussion among her colleagues. The only explanation they could come up with was that, in light of the significant political pressure that had come to bear upon the case, immigration authorities elected to take the path of least resistance and drop its efforts to keep Mr. Perez from returning home.

In other words, Mr. Perez earned the right to return to the U.S. not because of the law but despite it.

False Expectations

Which brings me back to the man at last week’s clemency hearing. After the man finished speaking to the PRB, I followed him and his attorney out of the hearing room. I wanted to make sure the man understood his real odds of getting the government to let him remain in the U.S. – following the Perez case.

For good or bad, the Perez case has given many people the false impression that clemency can strike down an order of removal, even when you’ve been convicted of a felony drug offense.

Among the many things Mr. Perez had going for him was that he had a compelling story: enlisting in the Army after 9/11, returning home with a traumatic brain injury and PTSD. All these events predated his crime.

Not everyone has a compelling story like Mr. Perez’s. Stories like his play a critical role in the calculus that goes into deciding whether someone is worthy of clemency. As we saw during Gov. Rauner’s tenure, few people met that standard.

Moreover, unlike Mr. Perez, few people seeking clemency receive media attention, earn widespread public support and the backing of the political elite. Without all these elements, Mr. Perez would still be living in Mexico.

Eliminating Laws Meant to Punish Drug Offenders More Severely

If the politicians in Washington, D.C. who flocked to Mr. Perez’s defense believe that other people like him should receive the same protections, they will have to eliminate the harsher penalties that were added to the immigration law in 1996 -- presumably to advance this country’s war on drugs.

Currently, the only criminal offenses subject to relief from a full clemency or pardon are crimes involving moral turpitude and aggravated felonies (excluding drug offenses that also meet the definition of an aggravated felony). INA, 8 U.S.C. § 1227 (a(2)(A)(vi).

Removal Actions Targeting People with Convictions

Now more than ever, people with old criminal convictions are being deported to countries they haven’t lived in for years and where they have no family, speak or read the language.

In FY2019 (ending 9/30/19), immigration authorities reported making 143,099 administrative arrests. The overwhelming majority of those arrested had a criminal record. The two criminal offenses most often cited in connection with such arrests: DUIs and drug offenses.

Until changes are made to the U.S. immigration law, anyone applying for clemency hoping to cancel a removal order (due to a serious drug conviction), will need to take a page out of Mr. Perez’s playbook: get media coverage and ask their federal, state, and local representatives to advocate for them.

But even that may not be enough to overcome the current rules written into the U.S. immigration law.