(C)  Executive Pardon.  To be effective, the pardon must be executive: the President or state governor must grant the pardon.[239]  In addition, a pardon granted by a state board, acting under authority of the state constitution, satisfies the deportation statute.[240]  A pardon granted by a mayor was accepted since the Nebraska statute made him the supreme pardoning authority for convictions under local ordinances.[241]  The State Department regulations also accredit certain pardons granted by the U.S. High Commissioner and the U.S. Ambassador to Germany.[242]  Such a pardon by the U.S. High Commissioner also was deemed acceptable in a deportation proceeding.[243]  A territorial governor’s pardon was also held sufficient.[244]

 

Legislative pardons, however, are ineffective to avoid deportation.[245]  Moreover, a judicial “pardon” is not effective, since it is not an executive pardon.[246]

 

[239] 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).

[240] 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).

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

[242] 22 C.F.R. § 40.21(a)(5).

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

[244] 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).

[245] 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).

[246] 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).

CRIMINAL DEFENSE OF IMMIGRANTS - P. 668, AFTER END OF FIRST PARTIAL PARAGRAPH INSERT:
A pardon, however, will not nullify a deportation ground based on a controlled substances conviction, firearms conviction, domestic violence conviction or protective order violation, or any other conviction not listed in the statute. FN1: 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), ineffective, as not specifically included in INA 237(a)(2)(A)(v)). See N. Tooby, Criminal Defense of Immigrants, Appendix E (2003), for a complete list of conviction-based grounds of deportation.

Ninth Circuit

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).").

Eleventh Circuit

POST CON RELIEF " PARDON " FULL PARDON REQUIRED
Castillo v. U.S. Atty Gen., ___ F.3d ___, ___, 2014 WL 2915918 (11th Cir. Jun. 27, 2014) (aggravated felony conviction continues to trigger deportation, under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), even though the Georgia State Board of Pardons and Paroles had earlier pardoned noncitizen for the conviction that rendered him removable: Under the plain meaning of 1227(a)(2)(A)(vi), a pardon is only full when it restores the totality of rights abrogated by the underlying conviction. Here, Castillo's pardon did not reinstate his Second Amendment right to keep and bear arms, a privilege he lost under Georgia law as a result of his conviction. Thus, Castillo did not receive a full pardon, and 1227(a)(2)(A)(vi) does not apply.).

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