Crimes of Moral Turpitude


§ 10.21 D. Pardon

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A conviction for a crime involving moral turpitude will be eliminated for immigration purposes if the noncitizen has been granted “a full and unconditional pardon by the President of the United States or by the Governor of any of the several states.”[225]  The deportation statute expressly provides that a pardon protects a noncitizen convicted of one or more CMTs from deportation on account of those convictions.[226]  This protection has been extended to encompass, in addition, those noncitizens who would have been deportable, on account of having been inadmissible at entry, because of one or more convictions of crimes involving moral turpitude.[227]  A pardon also eliminates a conviction of a crime of moral turpitude for inadmissibility purposes.[228]


While the BIA has held that a qualifying pardon will only eliminate the grounds of deportation specified in the statute (CMTs, aggravated felonies, and convictions of high speed border chase),[229] there is an excellent argument that a federal pardon will eliminate any conviction whatsoever as a trigger for adverse immigration consequences as a matter of constitutional law.[230]  In addition, at least in the Ninth Circuit, there is a strong argument that a qualifying state pardon must be given the same effect as a presidential pardon as a matter of Equal Protection.[231]


The BIA has held that the fact that no executive pardon is available under the laws of a state will not prevent the conviction from having immigration consequences.[232] 


            While the BIA has held that the new IIRAIRA definition of “conviction” eliminated relief under “state rehabilitative statutes,”[233] and there is some question whether the statutes allowing for state executive pardons would be considered “state rehabilitative statutes” under this authority, the effectiveness of pardons is grounded on specific federal legislation, so they remain effective to eliminate the adverse immigration consequences specified in the statute.[234]


First, to be effective, the pardon must be full and unconditional.[235]  A conditional pardon is not effective, whether the conditions are precedent or subsequent.[236]  Under previous law it was uncertain whether some conditional pardons might be sufficient.[237]  Of course, if the condition has been fulfilled the pardon probably would be regarded as absolute, even under present law.[238]  The President’s constitutional power to grant conditional pardons is discussed in Schick v. Reed.[239]  Moreover, the 1952 Act’s retroactivity reached a criminal violator whose conditional pardon sheltered him from deportability under prior law.[240]  But the fact that a pardon states that it is granted “to prevent deportation” does not make it conditional, since these words are merely descriptive and do not limit the validity of the pardon.[241]


Second, the pardon must be executive: the President or state governor must grant the pardon.[242]  In addition, a pardon granted by a state board, acting under authority of the state constitution, satisfied the deportation statute.[243]  A pardon granted by a mayor was accepted since the Nebraska statute made him the supreme pardoning authority for convictions under local ordinances.[244]  The State Department regulations also accredit certain pardons granted by the U.S. High Commissioner and the U.S. Ambassador to Germany.[245]  Such a pardon by the U.S. High Commissioner also was deemed acceptable in a deportation proceeding.[246]  A territorial governor’s pardon was also held sufficient.[247]


An unconditional pardon given by the Georgia State Board of Pardons and Paroles to a Greek permanent resident who had been convicted of simple larceny was held sufficient, where it was the only unconditional executive pardon that could be obtained in Georgia.[248]


In Washington State, Governor Gary Locke granted pardons to immigrants to avoid deportation.  In Georgia, pardons have also been granted for immigration purposes.  However, few other governors are granting very many pardons for immigrants.


A full and unconditional pardon granted in this manner is completely binding for deportation purposes, and cannot be vitiated or ignored on a charge that it was fraudulently obtained, in the absence of action by the authorities who granted the pardon to revoke the pardon.[249]


Legislative pardons are ineffective to avoid deportation.[250]  Moreover, a judicial “pardon” is not effective, since it is not an executive pardon.[251]

[225] INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v), formerly INA § 241(a)(2)(a)(iv), 8 U.S.C. § 1251(a)(2)(a)(iv), created by Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5081.  The current statute also provides that a pardon eliminates deportability on account of two or more CMT convictions, aggravated felony convictions, or convictions of high speed border chase under 18 U.S.C. § 758.  The predecessor statute, prior to 1990, was INA § 241(b).  Compare former INA § 241(a)(2)(A)(iv), 8 U.S.C. § 1251(a)(2)(A)(iv) (moral turpitude, aggravated felony); Matter of H, 7 I. & N. Dec. 249 (BIA 1956) (pardon eliminates confinement for purposes of 180-day good-moral-character requirement).  See Annot., What Constitutes Full and Unconditional Pardon Under § 241(B) Of Immigration And Nationality Act of 1952 . . ., 101 A.L.R. Fed. 668 (1991).  By analogy, the Ninth Circuit has held that an unqualified state court restoration of rights bars a federal felon-with-gun conviction.  United States v. Herron, 45 F.3d 340 (9th Cir. 1995).

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

[227] Matter of H, 6 I. & N. Dec. 90 (BIA 1954) (interpreting former statute).

[228] Rasmussen v. Robinson, 163 F.2d 732 (3d Cir. 1947); Matter of H, 6 I. & N. Dec. 90 (BIA 1954); Matter of EV, 5 I. & N. Dec. 194 (BIA 1953).

[229] Matter of Suh, 23 I. & N. Dec. 626 (BIA 2003) (a presidential or gubernatorial pardon waives only those three grounds of deportation specifically set forth in INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v)).  Additionally, the 1977 presidential pardon for violations of the Military Selective Service Act specifically applies to eliminate the commission of such violations as grounds of inadmissibility.  Implementation of Presidential Proclamation No. 4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42 Fed. Reg. 59562 (Nov. 18, 1977).  See also Matter of Rahman, 16 I. & N. Dec. 579 (BIA 1978).

[230] The Department of Justice Office of Legal Counsel (OLC) 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. The opinion relied upon the practically unlimited presidential powers as stated in Article II, section 2 of the Constitution, and argued that for an act of Congress to limit those powers would violate the Separation of Powers.  See

[231] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), 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.”  (Id. at 748.)  If successful, this argument means state pardons would be as immune from Congressional action as presidential pardons.

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

[233] Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).

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

[235] Taylor v. United States, 231 F.2d 856 (5th Cir. 1956) (full and unconditional 1953 gubernatorial pardon for 1924 second-degree murder conviction prevented 1953 deportation proceedings); see Taran v. United States, 266 F.2d 561 (8th Cir. 1959) (court rejected government’s attempt to discredit a pardon of a conviction of first-degree grand larceny granted by the Minnesota State Board of Pardons on the basis that the noncitizen had obtained the pardon by misrepresentation, concealment, and fraud, holding that assuming a full and unconditional pardon may be attacked, this may be done only between the state and the pardon-holder, and it is not possible for a third party to collaterally attack or indirectly impeach it); Matter of Tajer, 15 I. & N. Dec. 125 (BIA 1974) (BIA remanded Iranian nonimmigrant student’s case to allow unconditional pardon for the crime of theft to be received into evidence); Matter of L, 6 I. & N. Dec. 355 (BIA 1954) (BIA held that a pardon of a second-degree murder conviction was full and unconditional despite saying that the noncitizen was being pardoned “to prevent deportation,” since quoted words did not create a condition that if violated, would cause the pardon to become null and void and merely described what had motivated the exercise of executive clemency); Matter of T, 6 I. & N. Dec. 214 (BIA 1954) (BIA affirmed termination of deportation proceedings where Japanese citizen 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 lascivious conduct, paying a 17-year-old female $7 for sexual intercourse); Matter of H, 6 I. & N. Dec. 90 (BIA 1954) (pardon prevented deportation on grounds noncitizen was inadmissible at entry for CMT conviction).

[236] Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988) (automatic pardon for first offenders under Louisiana law was conditional on serving sentence, and did not qualify as unconditional pardon; it also was not a full pardon because it did not restore offender to former state of innocence); Matter of C, 5 I. & N. Dec. 630 (BIA 1954) (Italian’s Ohio pardon for a blackmail conviction was not unconditional, since it was explicitly granted “conditioned upon good behavior and conduct and provided that he demeans himself as a law-abiding person and is not convicted of any other crime, otherwise this pardon to become null and void.”  A conditional pardon is one to which a condition is annexed, the performance of which is necessary to the pardon’s validity.).

[237] Matter of B, 3 I. & N. Dec. 551 (BIA 1949).

[238] See Matter of G, 3 I. & N. Dec. 808 (BIA 1949).

[239] Schick v. Reed, 419 U.S. 256 (1974).

[240] Lehmann v. Carson, 353 U.S. 685 (1957).

[241] Matter of L, 6 I. & N. Dec. 355, 366 (BIA 1954).

[242] 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).

[243] 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).

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

[245] 22 C.F.R. § 40.21(a)(5).

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

[247] 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).

[248] Matter of D, 7 I. & N. Dec. 476 (BIA 1957).  See also Matter of Cevallos, 12 I. & N. Dec. 750 (BIA 1968), overruled on other grounds by Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988) (pardon by a pardon board consisting of the Governor and other cabinet members is effective for immigration purposes, and pardon by the mayor for violation of a city ordinance is an effective pardon when the mayor constitutes the only pardoning authority).

[249] Taran v. United States, 266 F.2d 561 (8th Cir. 1959).

[250] 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).

[251] 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).



Ninth Circuit

United States v. Bays, 589 F.3d 1035 (9th Cir. Dec. 17, 2009) (Idaho state pardon of two state controlled substances convictions was ineffective to expunge those convictions under USSG 4A1.2; convictions were properly considered in computing defendant's criminal history score since "Application Note 10 to section 4A1.2 states . . . that previous convictions which are 'set aside or ... pardoned for reasons unrelated to innocence or errors of law' are to be counted. Id. 4A1.2 cmt. n.10."); see United States v. Hayden, 255 F.3d 768, 770 (9th Cir.2001), cert. denied, 534 U.S. 969, 771, 122 S.Ct. 383, 151 L.Ed.2d 293 (2001). The commentary in Application Note 10 is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."), quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).
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

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.).


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.
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."