Criminal Defense of Immigrants


§ 11.24 2. Foreign Pardons

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A foreign pardon is not effective to eliminate a conviction for immigration purposes.[262]


In Roccaforte v. Mulcahey,[263] 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 two such distinct crimes merely because one of them may have been part of the same criminal scheme as other crimes for which a pardon has been granted.


In Matter of R,[264] the BIA held the Governor’s Pardon received by a Mexican citizen was not sufficient to eliminate the immigration effects of convictions for rape, adultery, false swearing, and child abandonment, claiming it was a restoration of rights only, not an absolute pardon, and was issued as a matter of executive clemency in reward for rehabilitation, under a law making the restoration of rights automatic.  The BIA remanded the case, following the termination of deportation proceedings, to afford the noncitizen an opportunity to apply for a full and unconditional pardon under Wisconsin law.  The BIA observed that Matter of G,[265] which treated a certificate of executive clemency as a pardon under the Immigration Act of 1917, had involved the restoration of civil rights by the governor of Wisconsin in June 1946 before the 1947 session of the Wisconsin legislature, which passed a law providing for the automatic restoration of civil rights to a person who served out his term of imprisonment or otherwise satisfied a sentence.  Before the 1947 legislation, civil rights could be restored only by a pardon, according to a 1916 opinion of the Wisconsin attorney general. The then-incumbent attorney general had stated that the June 1946 order of the governor restoring civil rights was in legal effect a full pardon.


                In Matter of Nolan,[266] the Board held that a pardon automatically given to an immigrant from Ireland pursuant to a state constitutional provision did not qualify as a full and unconditional pardon for immigration purposes.  The pardon was issued pursuant to the Louisiana Constitution, which partly provided that on the recommendation of the Board of Pardons the governor may commute sentences, pardon those convicted of criminal offenses, and remit fines and forfeitures imposed therefore, and also 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.”  The BIA held that the pardon in this case was neither “full,” since it did not restore his former status of innocence, nor “unconditional,” since it was specifically conditioned on his completion of the sentence imposed for his conviction.  The BIA rejected the argument that because, under Louisiana law, no pardon was available to the noncitizen as a first-felony offender that would satisfy the requirements of the immigration laws, the crime of which he had been convicted should not be considered a “crime” for the purpose of deportability, overruling Matter of Cevallos.[267]

[262] Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992), opinion amended on denial of rehearing, 986 F.2d 1364 (11th Cir. 1992); Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. denied, 305 U.S. 611, 59 S.Ct. 69 (1938); Palermo v. Smith, 17 F.2d 534 (2d Cir. 1927); Consola v. Karnuth, 108 F.2d 178 (2d Cir. 1939); Weedin v. Hempel, 28 F.2d 603 (9th Cir. 1928); Vidal y Planas v. Landon, 104 F.Supp. 384 S. D.Cal. 1952); Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960) (foreign pardon or expungement by German authorities of a German’s simple larceny and concealing stolen goods convictions did not eliminate them as a basis for deportation); Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (amnesty or pardon, Italy); Matter of B, 7 I. & N. Dec. 166 (BIA 1956) (amnesty); Matter of FYG, 4 I. & N. Dec. 717 (BIA 1952); Matter of G, 5 I. & N. Dec. 129 (BIA 1953); see Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (foreign expungement effective by analogy to FFOA, distinguishing foreign pardons).  Cf. Matter of K, 9 I. & N. Dec. 336 (BIA 1961) (pardon issued by U.S. High Commissioner for Germany recognized).

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

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

[265] Matter of G, 4 I. & N. Dec. 73 (BIA 1950).

[266] Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988).

[267] Matter of Cevallos, 12 I. & N. Dec. 750 (BIA 1968).




It may be possible to argue that a foreign pardon, like a foreign expungement, should be effective to eliminate a first conviction of simple possession, and similar offense, in the Ninth Circuit where state rehabilitative relief works, since the Ninth Circuit held foreign rehabilitative relief effectively eliminates a conviction for all immigration purposes. Dillingham v. Ashcroft, 267 F.3d 996 (9th Cir. 2001). The Ninth Circuit has not insisted that the rehabilitative relief (state or foreign) be identical to the Federal First Offender Act to be effective, so long as it is rehabilitative relief. A pardon is clearly rehabilitative, since it is granted based on rehabilitation of the defendant since the offense occurred.

It is true that prior law clearly held foreign pardons are not effective to nullify a conviction. See Matter of Dillingham ("It has been held that the pardon provision of the Act applies only to pardons granted in the United States for crimes committed in this country after entry and that a foreign amnesty or pardon will therefore not render a foreign conviction ineffective for immigration purposes. Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992), amended on rehearing, 986 F.2d 1364 (11th Cir. 1993); Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Weedin v. Hempel, 28 F.2d 603 (9th Cir. 1928); Zgodda v. Holland, 184 F. Supp. 847 (E.D. Pa. 1960). . . Matter of B, 7 I&N Dec. 166 (BIA 1956); Matter of F-yG-, 4 I&N Dec. 717 (BIA 1952).5)."

Moreover, even full federal or state executive pardons, that would eliminate CMTs or aggravated felonies, do not eliminate drug convictions. See Matter of Suh, 23 I. & N. Dec. 626, 627 (BIA 2003) ("Other removable offenses, such as controlled substance violations under section 237(a)(2)(B), certain firearm offenses under section 237(a)(2)(C), and violations of protection orders under section 237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of section 237(a)(2)(A)(v) of the Act).")

The Ninth Circuit in Dillingham distinguished the foreign pardon cases cited by the government, saying they were virtually all CMT cases: "It is unsurprising that courts have not found any problematic equal protection implications for aliens deported (or deemed inadmissible) for such crimes, given that they would not have qualified for expungement under an applicable federal statute anyway. Cf. Carr v. INS, 86 F.3d 949, 952 (9th Cir. 1996) (holding that Garberding was of no help to an alien who was convicted of a firearms offense and subsequently ordered deported by the INS, because Garberding "did not speak to the issue of treating aliens differently on the basis of the crimes they had committed"). The court continued: "The one exception -- Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992) -- involved convictions for drug possession for purposes of trafficking, not simple possession, and thus would not have been subject to FFOA rehabilitation either." (Id. at 1377.) The pardon in that case went unrecognized for immigration purposes because no pardons of drug offenses are recognized under the INA, whether foreign or domestic. (Id. at 1379 n.7; 8 U.S.C. 1227(a)(2)(B). But cf. 8 U.S.C. 1227(a)(2)(A)(v) (recognizing pardons of crimes of moral turpitude). Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001).

It is not because a foreign pardon of an offense qualifying for FFOA treatment is a pardon that it is effective under Dillingham: it is because the defendant would have been eligible for FFOA treatment if the offense had been prosecuted in federal court, so it would violate equal protection to hold this rehabilitative relief was ineffective, where state or federal FFOA-type relief was effective, simply because of the jurisdiction of the prosecution.