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A SPECIAL SECTION:  Haiti since the January 12, 2010 Earthquake
                                                         
Posted May 5, 2010
                                       
nytlogo.gif (3067 bytes) New York Region
 
New Paterson Policy May Reduce Deportations
 

By DANNY HAKIM

and NINA BERSTEIN
                                               
ALBANY - Gov. David A. Paterson announced on Monday that the state would accelerate consideration and granting of pardons to legal immigrants for old or minor criminal convictions, in an effort to prevent them from being deported.

The move sets up a confrontation between the governor and federal immigration officials, who have taken more aggressive action to increase deportations in recent years. Immigration lawyers on both sides called the step extraordinary and said it could ultimately affect thousands of people in New York.

"Some of our immigration laws, particularly with respect to deportation, are embarrassingly and wrongly inflexible," Mr. Paterson said in a speech on Monday at an annual gathering of the state's top judges. "In New York we believe in renewal," he added.  "In New York, we believe in rehabilitation."

Mr. Paterson is establishing a special five-member state panel to review the cases; while few such cases are currently pending, the administration expects an influx of hundreds of new pardon applications by the end of the year.

The move thrusts the governor into the middle of the country's immigration debate and could give new hope to legal immigrants facing deportation.

Mr. Paterson said the new policy was in the works weeks before Arizona enacted a law late last month to give the police there broad authority to question people about their immigration status. It was spurred in part by his pardon in March of Qing Hong Wu, a 29-year-old information technology executive who The New York Times reported had been threatened with deportation because he participated in a series of muggings as a 15-year-old. He had not lived in his native China since he was 5.

"We just feel that some of these charges are very minor in nature and some of these conversations go back beyond a decade for people who've demonstrated that they've lived productive lives in the interim," Mr. Paterson said. "We're separating these cases from ones where there are egregious crimes."

The White House referred calls to the Department of Homeland Security, which would not comment directly on the governor's plan.

"D.H.S. continues to focus on smart, effective immigration enforcement that prioritizes criminal aliens who present the greatest risk to the security of our communities," Matt Chandler, a spokesman for the agency, said. "At the same time, we are applying common sense and using discretion on a case-by-case basis to ensure that our enforcement is meeting our priorities."

Mr. Paterson does not need legislative approval to undertake the new policy. Federal immigration laws enacted in 1996 greatly expanded the categories of legal immigrants subject to mandatory deportation as "aggravated felons," including people who had pleaded guilty to misdemeanor drug possession.

For years after the laws' passage, immigration authorities had neither the resources nor the political will to track down or detain legal permanent residents with relatively minor convictions. Because of that, many people years ago pleaded guilty to criminal charges in exchange for probation or no jail time, without having been advised by their lawyers that the plea made them subject to deportation.

Now, however, stepped-up enforcement, huge new criminal databases and expanded use of detention are resulting in deportation proceedings against more people with old convictions, while immigration judges have no discretion to consider their individual cases.

Only a governor's pardon can prevent deportation in such cases, even when the legal immigrant is married to a United States citizen and has citizen children.

"This is huge," said Bryan Lonegan, a veteran immigration lawyer who is an expert on the immigration consequences of criminal convictions. "So many legal permanent residents are being arrested and detained based on trivial convictions - the guy being deported for swiping a MetroCard when he fell on hard times, people with minor marijuana convictions, people who shoplifted in a moment of weakness," he added.

Nationally, more than 97,000 noncitizens are deported annually based on criminal convictions, rather than lack of lawful immigration status, and the great majority are believed to be legal permanent residents, said Nancy Morawetz, who teaches law at New York University and directs the N.Y.U. Immigrant Rights Clinic. She estimates that about 10 percent are from New York.

Thousands of other New Yorkers with green cards — like other legal immigrants elsewhere — are now afraid to travel or apply for citizenship for fear that they will be detained and deported based on an old conviction, she said.

But while immigrant advocates were quick to embrace Mr. Paterson's initiative, supporters of tougher immigration enforcement sounded a different note.

"There are people out there, maybe the governor included, who don't want to deport anybody, even people who have committed crimes," said Jan Ting, a professor at Temple University Law School, and a former assistant immigration commissioner. "I understand the impulse, but it's an impulse that leads to open borders."

Nationally, much of the debate about immigration has focused on those who are here illegally. But the governor's proposal underscores the degree to which lawful permanent residents also have been greatly affected by toughened enforcement measures.

There is scant precedent for the policy Mr. Paterson is enacting. Among the unanswered questions, people on both sides said, is how Congress and the Board of Immigration Appeals will react to the governor's effort.

In a more limited step, in the 15 months after the 1996 law was enacted, the Georgia Board of Pardons and Parole granted 138 pardons to permanent residents who had suddenly faced deportation retroactively.

But much has changed since then; most significantly, the federal government has become more aggressive, in practice, in seeking deportations.

And Mr. Paterson is essentially issuing a broad invitation for members of a large class of people with criminal convictions to come forward and seek pardons.

The governor is drawing on existing state employees to serve on the five-member Special Immigration Board of Pardons. Review of individual cases is expected to take weeks.

The governor said he hoped his new policy could "set an example for how other states might consider softening the blow that people who get caught up in this web of the national immigration laws are experiencing." Danny Hakim reported from Albany, and Nina Bernstein from New York. Jeremy W. Peters contributed reporting from Albany.

Copyright 2010 The New York Times Company. Reprinted from The New York Times, National of Tuesday, May 4, 2010.

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