Reversal of Fortune: How a Pardon Halts Detention and Deportation

05/09/2010 05:12 am ET | Updated May 25, 2011

The fate of a young immigrant man seemed set in stone - mandatory detention since he was a 'criminal alien' followed by deportation to the country of his birth which he left almost twenty-five years ago. But the young man sustained a reversal of fortune last Saturday when Gov. Paterson granted him a pardon for rising above past mistakes and turning his life around. This line of reasoning should be the norm rather than the exception and rehabilitation should be a determining factor in cases involving detention and deportation.

At the age of five, Qing Hong Wu immigrated from China to the United States with his family. As a teenager, he was involved in a series of muggings in lower Manhattan, along with other teenagers. At trial, Mr. Wu was sentenced to three to nine years in a reformatory, and was released after three years. In the ensuing years, Mr. Wu turned his life around, became a productive member of society and eventually rose to the rank of vice president of information technology at a real estate financial and management company. When Mr. Wu, a legal permanent resident, applied for citizenship last fall, his past came back to haunt him. Immigration authorities became aware of Mr. Wu's past crimes - now deemed deportable offenses. Mr. Wu was held at an immigration detention facility in New Jersey pending deportation to China.

On Saturday when Gov. Paterson pardoned Mr. Wu, it was in essence, a forgiveness of the offense. At the state level, the governor has the power to grant either an unconditional or a conditional pardon. An unconditional pardon not only fully restores an individual's civil rights forfeited upon conviction of a crime, but also restores the person's innocence, as if he/she never committed the crime in the first place. For Mr. Wu, the pardon not only cancels his detention and removal proceedings, but it can also put him on the path to citizenship.

But for the pardon by Gov. Paterson, Mr. Wu would be facing the fate of countless other permanent residents languishing in immigration limbo and facing removal for criminal activities. Pardons in the immigration system, otherwise referred to as 212(c) waivers (pursuant to Section 212(c) of the Immigration and Nationality Act) were available for most crimes prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This is no longer the case. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) eliminated 212(c) relief in its entirety. Moreover, immigration laws presently make no provision for rehabilitation to be considered. According to Attorney Alina Das of New York University Law School's Immigrant Rights Clinic, "I applaud the use of pardons to alleviate harsh immigration consequences -- but further changes in immigration law are necessary because pardons only currently work in limited circumstances".