Criminal Defense of Immigrants

(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).