(D)  Nature of Effective Pardon.   A conviction for a crime involving moral turpitude will be eliminated for immigration purposes if the noncitizen has been granted “a full and unconditional pardon by the President of the United States or by the Governor of any of the several states.”[160] 

 

(1)  Requirements for Effective Pardon.  This legislation has created several requirements for an effective pardon.

 

First, the pardon must be full and unconditional.[161]  A conditional pardon is not effective, whether the conditions are precedent or subsequent.[162]  Under previous law it was uncertain whether some conditional pardons might be sufficient.[163]  Of course, once the condition has been fulfilled the pardon probably would be regarded as absolute, or unconditional even under present law.[164]  The President’s constitutional power to grant conditional pardons is discussed in Schick v. Reed.[165]  Moreover, the 1952 Act’s retroactivity reached a criminal violator whose conditional pardon sheltered him from deportability under prior law.[166]  The fact that a pardon states that it is granted “to prevent deportation” does not make it conditional, since these words are merely descriptive and do not limit the validity of the pardon.[167]

 

Second, the pardon must be executive: the President or governor must grant the pardon.[168]  A pardon granted by a state board, acting under authority of the state constitution, also satisfied the deportation statute.[169]  A pardon granted by a mayor was accepted since the Nebraska statute made him the supreme pardoning authority for conviction under local ordinances.[170]  The State Department regulations also accredit certain pardons granted by the U.S. High Commissioner and the U.S. Ambassador to Germany.[171]  Such a pardon by the U.S. High Commissioner was also deemed effective in a deportation proceeding.[172]  A territorial governor’s pardon was also held sufficient.[173]

(2)  Determination of Whether a Pardon Exists.  The name of the document may not always determine whether the immigration authorities will regard it as a pardon.  A document called an “amnesty” may be accepted by the immigration authorities as equivalent to a pardon.[174]  Commutations of sentence or release on parole are not regarded as pardons.[175]  An order restoring civil rights may be considered equivalent to a pardon, for immigration purposes, if it satisfies all the requirements of a pardon: a grant by the governor unconditionally removing all disabilities.[176]  After a 1947 amendment of Wisconsin law, a Wisconsin restoration of civil rights is no longer regarded as equivalent to a full and unconditional pardon for immigration purposes.[177]

 

(3)  Legislative Pardons.  Legislative pardons are ineffective to avoid deportation.[178] 

 

(4)  Judicial Pardons.  Moreover, a judicial “pardon” is not effective, since it is not an executive pardon.[179]

 

(5)  Pardon Effective Only As to Specific Offense.  In Roccaforte v. Mulcahey,[180] the District Court held deportable a noncitizen who had been convicted in 1945 of (1) breaking and entering in the nighttime with intent to commit burglary and larceny, and (2) possession of burglary tools with intent to commit larceny.  He had been ordered deported for the former offense, and had received a pardon for the latter offense.  Nothing forbids basing a deportation order on an unpardoned conviction merely because a pardon has been granted for a second conviction in the same criminal scheme.

[160] INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v), formerly INA § 241(a)(2)(a)(iv), 8 U.S.C. § 1251(a)(2)(a)(iv), created by Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5081.  The predecessor statute, prior to 1990, was INA § 241(b).  The current statute also provides a pardon eliminates deportability on account of two or more CMT convictions, aggravated felony convictions, or convictions of high speed border chase under 18 U.S.C. § 758.  INA § 241(a)(2)(A)(iv), 8 U.S.C. § 1251(a)(2)(A)(iv) (moral turpitude, aggravated felony); Matter of H, 7 I. & N. Dec. 249 (BIA 1956) (pardon eliminates confinement for purposes of 180-day good-moral-character requirement).  See Annot., What Constitutes Full and Unconditional Pardon Under § 241(B) Of Immigration And Nationality Act of 1952 . . ., 101 A.L.R. Fed. 668 (1991).  By analogy, the Ninth Circuit has held that an unqualified state court restoration of rights bars a federal felon-with-gun conviction.  United States v. Herron, 45 F.3d 340 (9th Cir. 1995).

[161] Taylor v. United States, 231 F.2d 856 (5th Cir. 1956) (full and unconditional 1953 gubernatorial pardon for 1924 second-degree murder conviction prevented 1953 deportation proceedings); see Taran v. United States, 266 F.2d 561 (8th Cir. 1959)(court rejected government’s attempt to discredit a pardon of a conviction of first-degree grand larceny granted by the Minnesota State Board of Pardons on the basis that the alien had obtained the pardon by misrepresentation, concealment, and fraud, holding that assuming a full and unconditional pardon may be attacked, this may be done only between the state and the pardon-holder, and it is not possible for a third party collaterally to attack or indirectly impeach it); Matter of Tajer, 15 I. & N. Dec. 125 (BIA 1974) (BIA remanded Iranian nonimmigrant student’s case to allow unconditional pardon for the crime of theft to be received into evidence); Matter of L, 6 I. & N. Dec. 355 (BIA 1954) (BIA held that a pardon of a second-degree murder conviction was full and unconditional despite saying that the noncitizen was being pardoned “to prevent deportation,” since quoted words did not create a condition that if violated, would cause the pardon to become null and void and merely described what had motivated the exercise of executive clemency); Matter of T, 6 I. & N. Dec. 214 (BIA 1954) (BIA affirmed termination of deportation proceedings where Japanese citizen had received a free and full pardon from the acting Governor of Hawaii, a territory, for the crimes of sexual intercourse with a female under the age of 16 and the wife of another and of lascivious conduct, paying a 17-year-old female $7 for sexual intercourse); Matter of H, 6 I. & N. Dec. 90 (BIA 1954) (pardon prevented deportation on grounds noncitizen was inadmissible at entry for CMT conviction).

[162] Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988) (automatic pardon for first offenders under Louisiana law was conditional on serving sentence, and did not qualify as unconditional pardon; it also was not a full pardon because it did not restore offender to former state of innocence); Matter of C, 5 I. & N. Dec. 630 (BIA 1954) (Italian’s Ohio pardon for a blackmail conviction was not unconditional, since foreign pardon was explicitly granted “conditioned upon good behavior and conduct and provided that he demeans himself as a law-abiding person and is not convicted of any other crime, otherwise this pardon to become null and void.”  A conditional pardon is one to which a condition is annexed, the performance of which is necessary to the pardon’s validity.).

[163] Matter of B, 3 I. & N. Dec. 551 (BIA 1949).

[164] See Matter of G, 3 I. & N. Dec. 808 (BIA 1949).

[165] Schick v. Reed, 419 U.S. 256 (1974).

[166] Lehmann v. Carson, 353 U.S. 685 (1957).

[167] Matter of L, 6 I. & N. Dec. 355, 366 (BIA 1954).

[168] Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988) (automatic pardon under Louisiana law, without any executive action, did not meet statutory requirement for relief from deportation).

[169] Matter of Tajer, 15 I. & N. Dec. 125 (BIA 1974) (Ga. State Board of Pardons and Paroles); Matter of D, 7 I. & N. Dec. 476 (BIA 1957).

[170] Matter of CR, 8 I. & N. Dec. 59 (BIA 1958).

[171] 22 C.F.R. § 40.21(a)(5).

[172] Matter of K, 9 I. & N. Dec. 336 (BIA 1961).

[173] Matter of T, 6 I. & N. Dec. 214 (BIA 1954) (territorial governor’s full and unconditional pardon held sufficient; BIA affirmed termination of deportation proceedings against a Japanese citizen who had received a free and full pardon from the acting Governor of Hawaii, a territory, for the crimes of sexual intercourse with a female under the age of 16 and the wife of another and of lasciviousness, paying a 17-year-old female $7 for sexual intercourse).

[174] Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Matter of Adamo, 10 I. & N. Dec. 593 (BIA 1964); Matter of B, 7 I. & N. Dec. 166 (BIA 1956).

[175] United States v. Comm’r of Immigration at Port of New York, 5 F.2d 162 (2d Cir. 1924).

[176] Matter of S, 5 I. & N. Dec. 10 (INS Central Office 1952, BIA 1953) (Washington);  Matter of G, 4 I. & N. Dec. 73 (BIA 1950) (Wisconsin). Cf. Matter of O, 3 I. & N. Dec. 209 (BIA 1948, AG 1950) (Nebraska and Illinois).

[177] Matter of R, 8 I. & N. Dec. 677 (BIA 1960).

[178] Matter of Tajer, 15 I. & N. Dec. 125 (BIA 1974); Matter of D, 7 I. & N. Dec. 476 (BIA 1957); Matter of R, 6 I. & N. Dec. 444 (BIA 1954) (legislative pardon received following a conviction on two indictments charging four offenses — fraudulent conversion, larceny, receiving stolen goods, and conspiracy to steal — did not qualify as executive pardon); Matter of H, 6

I. & N. Dec. 90 (BIA 1954) (recognizing rule); Matter of R, 5 I. & N. Dec. 612 (BIA 1954) (discharge from parole nunc pro tunc pursuant to a state statute providing that “punishment so endured [by convicted offender] shall have the like effects and consequences as a pardon by the Governor” held ineffective as a legislative pardon); Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988) (a pardon was held to be legislative, and therefore ineffective, when granted pursuant to a state constitutional provision specifying that on the recommendation of the board of pardons the Governor may pardon those convicted of criminal offenses and that “a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the Governor.”).  Cf. Matter of K, 9 I. & N. Dec. 336 (BIA 1961) (statutory purpose to ban legislative pardons permits recognition of pardon granted by U.S. High Commissioner for Germany to Soviet citizen convicted of abortion).

[179] Matter of AF, 8 I. & N. Dec. 429 (BIA 1959) (California expungement granted by sentencing court held not equivalent to full and unconditional executive pardon required to eliminate conviction for immigration purposes).

[180] Roccaforte v. Mulcahey, 169 F.Supp. 360 (D. Mass. 1958), aff’d, 262 F.2d 957 (1st Cir. 1959).

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/