(F)  Argument Presidential Pardon Eliminates All Immigration Consequences.  The INA states 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.[250]  The Department of Justice Office of Legal Counsel (OLC), however, 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.[251]  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 to try through legislation 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,[252] 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.”[253]  Ignoring a valid state pardon when a Presidential pardon of the same offense 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.[254]

 

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

[251] See http://www.usdoj.gov/olc/pardon3.19.htm (last visited May 19, 2007).

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

[253] Id. at 748.

[254] Thanks to Ben Caspar and Dan Kesselbrenner for this argument.

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/