The deportation statute expressly provides that a pardon protects a noncitizen convicted of one or more crimes of moral turpitude, aggravated felonies, or high speed flights from an immigration checkpoint from deportation on account of those convictions.[124]  This protection has been extended to encompass, in addition, those noncitizens who would have been deportable, on account of having been inadmissible at entry, because of one or more convictions of crimes involving moral turpitude.[125]  A pardon also eliminates a conviction of a crime of moral turpitude for inadmissibility purposes.[126]

 

A full and unconditional pardon is completely binding for deportation purposes, and cannot be vitiated or ignored by reason of a claim that it had been fraudulently obtained, in the absence of action by the authorities who granted the pardon to revoke the pardon.[127]

 

The immigration courts need not grant a stay or continuance of deportation to enable the noncitizen to apply for a pardon.  The decision whether to issue a stay is a discretionary one.[128]  See § 8.15, supra.

[124] INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v).

[125] Matter of H, 6 I. & N. Dec. 90 (BIA 1954) (interpreting former statute).

[126] Rasmussen v. Robinson, 163 F.2d 732 (3d Cir. 1947); Matter of H, 6 I. & N. Dec. 90 (BIA 1954); Matter of EV, 5 I. & N. Dec. 194 (BIA 1953).

[127] Taran v. United States, 266 F.2d 561 (8th Cir. 1959).

[128] Vermiglio v. Butterfield, 223 F.2d 804 (6th Cir. 1955); Houvardas v. Wixon, 169 F.2d 980 (9th Cir. 1949).

Ninth Circuit

POST CON - PARDON -STATE PARDON DID NOT ELIMINATE CONVICTION FOR FEDERAL CRIMINAL HISTORY SENTENCE PURPOSES
United States v. Bays, 589 F.3d 1035 (9th Cir. Dec. 17, 2009) (Idaho state pardon of two state controlled substances convictions was ineffective to expunge those convictions under USSG 4A1.2; convictions were properly considered in computing defendant's criminal history score since "Application Note 10 to section 4A1.2 states . . . that previous convictions which are 'set aside or ... pardoned for reasons unrelated to innocence or errors of law' are to be counted. Id. 4A1.2 cmt. n.10."); see United States v. Hayden, 255 F.3d 768, 770 (9th Cir.2001), cert. denied, 534 U.S. 969, 771, 122 S.Ct. 383, 151 L.Ed.2d 293 (2001). The commentary in Application Note 10 is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."), quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Other

PARDON ARGUABLY ELIMINATES ALL CONVICTION-BASED GROUNDS OF DEPORTATION (AND INADMISSIBILITY?)
     The INA suggests that a pardon issued by the chief executive of a state or the President of the United States defeats deportability only for the specific grounds listed in the statute: convictions of crimes of moral turpitude, aggravated felonies, and high speed chase.  INA 237(a)(2)(A)(v), 8 U.S.C. 1227(a)(2)(A)(v). The Department of Justice Office of Legal Counsel (OLC) has published a formal opinion stating that when the President grants a pardon, the pardoned offense cannot be used as a basis to establish a noncitizen's deportabiilty regardless of the ground of deportation. See http://www.usdoj.gov/olc/pardon3.19.htm.       The OLC relies on Article II, section 2 of the Constitution, which authorizes the President "to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment".   The only limitation on the President's pardon authority is in "cases of impeachment".  Since the Constitution itself enumerates the Executive's pardon authority, it violates the Separation of Powers for Congress to try to impose limits on the effect of the pardon through legislation.       The author of the OLC Memo, Walter Dellinger, concluded as follows: Based on the foregoing analysis, we believe that a deportation order authorized by 1251(a)(2) is a consequence of a conviction that is precluded by a full and unconditional presidential pardon. Section 1251(a)(2) does not render a person deportable based on the conduct in which he or she engaged. Rather, this provision establishes an additional penalty that attaches solely because of the conviction. Thus, a person who engaged in the conduct prohibited by the relevant criminal statutes but was never convicted of the crime would not be deportable on the basis of this provision; the authority to deport hinges completely on the fact of conviction. Therefore, a presidential pardon would preclude the imposition of the penalty. Former INA 1251(a)(2) included the drug, moral turpitude, aggravated felony and firearm conviction grounds of deportability.  The subject of the OLC memorandum expressly covered all criminal grounds in former INA 1251(a)(2).      Presidential pardons are extremely rare.  If only recipients of Presidential pardons, as opposed to state pardons, are not deportable for the pardoned offense, the argument would apply to only a handful of people.      There are special arguments in the Ninth Circuit to prevent the government from deporting a noncitizen for a criminal offense pardoned by the chief executive officer of a state. In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), the Ninth Circuit held that it violated equal protection of the laws to allow noncitizens whose offenses qualified for treatment under the Federal First Offender Act, but who had their convictions expunged under state laws, to be subject to removal on account of those offenses.  In the Ninth Circuit's view, "aliens may not be treated differently based on the 'mere fortuity' that they happen to have been prosecuted under state rather than federal law, or under different state laws, as there is no rational basis for distinguishing among the affected groups. Paredes, 36 F.3d at 811-12; Garberding, 30 F.3d at 1191." (Id. at ____).      Ignoring a valid state pardon when a Presidential pardon would insulate a noncitizen from deportability creates the same kind of "mere fortuity" that the Ninth Circuit found unacceptable in Lujan, Paredes, and Garberding. Congress' attempt to limit the presidential power in violation of the separation of powers may render the entire statute unconstitutional.  Noncitizens in all states may therefore argue that the statute limiting pardoning authority is unconstitutional in its entirety.  Under this argument, any state pardon would forgive any ground of deportability, notwithstanding the statutory language to the contrary, because the attempt to limit presidential pardon authority invalidates the entire statute. Thanks to Ben Caspar and Dan Kesselbrenner for this argument.