Post-Conviction Relief for Immigrants

 

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

 

First, the pardon must be full and unconditional.[132]  A conditional pardon is not effective, whether the conditions are precedent or subsequent.[133]  Under previous law it was uncertain whether some conditional pardons might be sufficient.[134]  Of course, once the condition has been fulfilled the pardon probably would be regarded as absolute, or unconditional even under present law.[135]  The President’s constitutional power to grant conditional pardons is discussed in Schick v. Reed.[136]  Moreover, the 1952 Act’s retroactivity reached a criminal violator whose conditional pardon sheltered him from deportability under prior law.[137]  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.[138]

 

Second, the pardon must be executive: the President or governor must grant the pardon.[139]  A pardon granted by a state board, acting under authority of the state constitution, satisfied the deportation statute.[140]  A pardon granted by a mayor was accepted since the Nebraska statute made him the supreme pardoning authority for conviction under local ordinances.[141]  The State Department regulations also accredit certain pardons granted by the U.S. High Commissioner and the U.S. Ambassador to Germany.[142]  Such a pardon by the U.S. High Commissioner also was deemed effective in a deportation proceeding.[143]  A territorial governor’s pardon was also held sufficient.[144]

[132] 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).

[133] 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.).

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

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

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

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

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

[139] 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).

[140] 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).

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

[142] 22 C.F.R. § 40.21(a)(5).

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

[144] 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).