Criminal Defense of Immigrants

A conviction that is vacated on a ground of legal invalidity cannot trigger deportability under the domestic violence ground.  See Chapter 11, supra.[55]  A presidential or gubernatorial pardon, however, which will eliminate a crime involving moral turpitude or aggravated felony conviction for immigration purposes, will not perform that function with respect to a domestic violence conviction because the DV ground of deportation is not listed in the pardon statute.  See § 11.22, supra.[56]  “State rehabilitative relief,” such as an expungement or dismissal under statutes such as California Penal Code § 1203.4, will not be effective to eliminate the conviction.  See § 11.18, supra.[57]

[55] Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, ­454 F.3d 525, 527 (6th Cir. July 17, 2006).

[56] 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)(vi), 8 U.S.C. § 1227(a)(2)(A)(vi) (2000), and no implicit waivers may be read into the statute, so the respondent’s pardon did not waive removability for a conviction of a crime of domestic violence or child abuse under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), because that section is not specifically included in INA § 237(a)(2)(A)(vi), 8 U.S.C. § 1227(a)(2)(A)(vi).

[57] Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).