(C)  Qualifying Deportation Grounds. The Act provides that an executive pardon is effective to eliminate the deportation consequences of one or more crimes of moral turpitude, aggravated felonies, or offenses involving high speed flight from an immigration checkpoint. [153]  The statute does not provide that a pardon will nullify a deportation ground based on a controlled substances conviction, firearms conviction, domestic violence conviction or protective order violation, or any other unlisted conviction that triggers deportation.[2]

 

            There is an argument, however, that an executive pardon will eliminate any conviction for purposes of deportation.  The Immigration and Nationality Act 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 from an immigration checkpoint.[3]  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 deportability regardless of the ground of deportation.[4]

 

            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 through legislation to try to impose limits on the effect of the pardon. 

 

            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,[5] 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.”[6]

 

            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.[7]

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

[2] Matter of Suh, 23 I. & N. Dec. 626 (BIA 2003) (presidential or gubernatorial pardon waives only the grounds of removal specifically set forth in INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute; pardon of conviction of crime of domestic violence under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), ineffective, as not specifically included in INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v)).

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

[4] See http://www.usdoj.gov/olc/pardon3.19.htm. 

[5] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[6] Id. at 748.

[7] Thanks to Ben Caspar and Dan Kesselbrenner for this analysis.

Seventh Circuit

POST CON RELIEF - PARDON - SUFFICIENCY OF PROOF OF PARDON - NO ERROR IN BIA REFUSAL TO CONSIDER UNCERTIFIED COPY OF GEORGIA PARDON
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (uncertified photocopy of purported pardon was "not sufficiently reliable to meet [] heavy evidentiary burden to reopen proceedings." even though it bore a signature and a seal, because under 8 C.F.R. 287.6, "an official record or entry . . . when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy;" although 287.6 is not the "exclusive" method of authentication, see Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam), noncitizen offered no compelling reason why a properly certified copy of the pardon could was not submitted).

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).

POST CON RELIEF - PARDON - INADMISSIBILITY - PARDON DOES NOT CURE INADMISSIBILITY
Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir. Dec. 1, 2008) (denial of adjustment of status is affirmed where petitioner is inadmissible and no statutory basis exists to waive inadmissibility, since neither a state pardon nor an equal protection claim could overcome the fact that Congress has expressly declined to provide a waiver for an inadmissible alien convicted of a crime relating to a controlled substance: "We have not extensively addressed the dichotomy between inadmissible and deportable aliens in the context of a state pardon. However, the Eleventh Circuit explicitly explored this issue at length in Balogun v. United States Attorney General, 425 F.3d 1356, 1358 (11th Cir. 2005), where the petitioner asserted that his "full and unconditional" state pardon entitled him to waiver of inadmissibility pursuant to 8 U.S.C. 1227(a)(2)(A)(v). ... We agree with the Eleventh Circuit that the basic tenets of statutory construction preclude us from inferring a waiver under the provisions of 8 U.S.C. 1182(a).").

Other

CAL POST CON " GOVERNORS PARDON POST CON RELIEF " PARDON " CALIFORNIA
Governor Jerry Brown granted a full and unconditional governors pardon of 1984 convictions of crimes of moral turpitude in Apr., 2012. Thanks to Mathew Millen.

POST CON RELIEF - PARDON - NEW YORK
FOR IMMEDIATE RELEASE: May 23, 2008 GOVERNOR PATERSON ANNOUNCES PARDON OF RICKY "SLICK RICK" WALTERS On May 23, 2008, Governor David A. Paterson granted Ricky Walters a full and unconditional pardon of his 1991 attempted murder and weapon convictions, in order to allow Walters to seek relief from deportation from the federal immigration courts. "Mr. Walters has fully served the sentence imposed upon him for his convictions, had an exemplary disciplinary record while in prison and on parole, and has been living without incident in the community for more than 10 years," said Governor Paterson. "In that time, he has volunteered at youth outreach programs to counsel youth against violence, and has become a symbol of rehabilitation for many young people. Given these demonstrated rehabilitative efforts, I urge federal immigration officials to once again grant Mr. Walters relief from deportation, so that he is not separated from his many family members who are United States citizens, including his two teenage children."

POST CON - PARDON - SELECTIVE SERVICE PARDON - VIETNAM WAR
The 1977 presidential pardon for violations of the Military Selective Service Act specifically applies to eliminate the commission of such violations as grounds of inadmissibility. Implementation of Presidential Proclamation No. 4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42 Fed. Reg. 59562 (Nov. 18, 1977). This pardon was cited in Matter of Rahman, 16 I. & N. Dec. 579 (BIA 1978), regarding President Ford's pardon of Vietnam era draft dodgers, particularly regarding LPRs who returned on or before June 1, 1978.

POST CON RELIEF - FEDERAL - PRESIDENTIAL PARDON
http://www.justice.gov/pardon/