A-4118292.
Commissioner's Motion April 7, 1954. Decided by Board July 16, 1954.
Pardon — Section 241 (b) of the Immigration and Nationality Act — Benefits aliens deportable under section 241 (a) (1) and section 241 (a) (4) of the Immigration and Nationality Act.
The pardoning provision contained in section 241 (b) of the Immigration and Nationality Act includes not only a person who is deportable under section 241 (a) (4), but also a person who is deportable under section 241 (a) (1) as an alien excludable at the time of entry because a member of a proscribed criminal class. As long as there is a full and unconditional pardon granted by the President or by a governor of a state covering the crime which forms the ground of deportability, whether conviction was subsequent or prior to entry, the immunizing feature of the pardon clause applies, and such a crime no longer forms a basis for deportability.
CHARGE:
Warrant: Immigration Nationality Act — Section 241 (a) (1) — Convicted of crime prior to entry, to wit: Forgery, uttering and larceny.
BEFORE THE CENTRAL OFFICE
(April 7, 1954)
Discussion: On the 2d day of April 1954, the Board of Immigration Appeals entered an order approving the decision of the special inquiry officer, dated February 18, 1954, wherein he entered an order for the termination of this proceeding. It was concluded that since the respondent had obtained a pardon for the crimes which form the basis of the charge shown above, the charge was no longer sustainable.
The record relates to a 41-year-old married female, a native and citizen of Canada, who was lawfully admitted to the United States for permanent residence on January 6, 1912. On August 4, 1931, after a plea of guilty, respondent was convicted in the Superior Court, Suffolk County, Mass., of the crimes of uttering a forged instrument and larceny. These offenses involve moral turpitude. Respondent thereafter made two trips to Canada for short periods, one in 1940 and the other in 1943. She last entered the United States sometime in July 1943 at Newport, Vt., as a returning resident alien. Deportation proceedings were instituted based on the charge shown above by the issuance of the warrant of arrest on May 18, 1953, and the service thereof upon respondent on November 4, 1953. On November 18, 1953, respondent was granted by the Governor of the Commonwealth of Massachusetts a full and complete pardon for the crimes.
The issue presented is whether a pardon is effective to prevent deportation under the provisions of section 241 (a) (1) of the Immigration and Nationality Act for a charge based on the conviction of a crime involving moral turpitude prior to entry.
The Immigration Act of 1917, as amended, contained a proviso in section 19 (a) to the effect that the provision of such section respecting the deportation of aliens convicted of a crime involving moral turpitude should not apply to one who has been pardoned. It has been concluded both administratively and judicially that under this proviso, a pardon (as well as a valid recommendation against deportation) relating to a crime committed in the United States prior to an alien's reentry to the United States was effective to prevent deportation on a charge based on the commission of a crime prior to entry ( Perkins v. United States ex rel. Malesevic. 99 F. (2d) 255 (C.C.A. 3, 1938); Rasmussen v. Robinson, 163 F. (2d) 732 (C.C.A. 3, 1947); Matter of H---- and Y----, A-4799866, 3 IN Dec. 236 (C.O., 1948)). These decisions were apparently based on the view that Congress intended the pardoning provisions to apply to crimes committed in the United States, prior to as well as after entry. However, even this view was not free from doubt. (See United States v. Hughes, 116 F. (2d) 613 (C.C.A. 3, 1940); United States ex rel. Palermo v. Smith, 17 F. (2d) 534 (C.C.A. 2, 1927).)
It is, therefore, well established that were this case to be decided under the provisions of the Immigration Act of 1917, as amended, respondent would not be deportable in respect to the crimes committed prior to her reentries. However, this proceeding was instituted under the provisions of the Immigration and Nationality Act, the pardon was obtained after the effective date of such act and, consequently, it is necessary to consider the provisions of such act. The present provision relating to pardons is contained in section 241 (b) and provides that the provisions of subsection (a) (4) respecting the deportation of an alien convicted of a crime or crimes shall not apply in the case of any alien who has subsequent to such conviction been granted a pardon or a proper recommendation against deportation. Specifically this provision provides that the pardon shall only apply to the provisions of section 241 (a) (4) of the act. Subsection (4) relates to the deportability of an alien based on a charge resulting from a conviction of a crime involving moral turpitude committed within 5 years after entry or for the conviction of two crimes involving moral turpitude after entry. Respondent's deportability in this case is not predicated upon the provisions of section 241 (a) (4) but rather those of section 241 (a) (1), not upon a crime committed after entry but rather upon a crime committed prior to entry. At the time of respondent's reentries into the United States in 1940 and 1943, she was within one or more of the classes of aliens excludable by the law existing at the time of such reentries. The pardon she obtained was issued on November 18, 1953, at a time when the Immigration Act of 1917, as amended, was no longer in effect. It cannot therefore be concluded that respondent's case comes within any of the savings clauses set forth in section 405 of the Immigration and Nationality Act.
It might be contended, however, that the provisions of section 241 (b) should be given the same effect as the proviso in section 19 (a) of the Immigration Act of 1917, as amended. However, as heretofore stated, the decisions in respect to that proviso were apparently based on the view that Congress intended the pardoning provisions to apply to crimes committed in the United States prior to as well as after entry. The reasoning applied in respect to the Immigration Act of 1917, cannot be applied to the provisions of the present act. By its very terms, section 241 (b) applies only to cases coming within the provisions of subsection (a) (4) of section 241. Thus, a legislative pardon which would have been effective to prevent deportation under the Immigration Act of 1917, as amended, no longer serves for such purpose ( Matter of R----, E-080924, 5 IN Dec. 612 (B.I.A., January 14, 1954)). In that case the Board of Immigration Appeals stated in reference to section 241 (b) as follows:
We construe this section to represent a change in the existing law. It is a canon of statutory construction that legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, as well as the judicial interpretations thereof; and that if a change occurs in legislative language, a change was intended in legislative result, Sutherland, Statutes and Statutory Construction, volume 2, section 4510 (1943 ed.). It must be presumed, therefore, that when Congress enacted the Immigration and Nationality Act, it was aware of the judicial decisions which construed section 19 (a) of the 1917 act to include legislative pardons.
A similar conclusion was reached in the Matter of I----, E-25308, 5 IN Dec. 343 (B.I.A., July 21, 1953) wherein a recommendation against deportation to prevent deportability under section 241 (a) (11) of the Immigration and Nationality Act was held to be ineffective. In that case the Board stated:
Since the provision relating to a recommendation by the court against deportation is now specifically limited to persons who are deportable under section 241 (a) (4) and since there is no similar provision relating to section 241 (a) (11), under which the respondent is deportable, it follows that the recommendation against deportation which was made by the court in his case is not a bar to his deportation under section 241 (a) (11) of the Immigration and Nationality Act.
To the same effect in a case involving a recommendation against deportation for a narcotic offense, see the decision by the United States District Court for the Northern District of California, January 21, 1954, in the matter of Ex parte Robles-Rubio, 119 F. Supp. 610.
Should it be contended that the effect of a pardon is to wipe out a crime for immigration purposes, it might be pointed out that such a theory has been refuted by the decisions, administrative and judicial, that foreign pardons are ineffective to prevent exclusion or deportation based on crimes committed in a foreign jurisdiction ( Matter of G----, A-7873905, 5 IN Dec. 129 (B.I.A., Feb. 17, 1953)) and that legislative pardons for immigration purposes are ineffective under the provisions of the present act.
In view of the above, it is the view of the Service that since the pardoning provision in the present act is limited to cases coming within the provisions of section 241 (a) (4) of the Immigration and Nationality Act, the pardon in this case is no bar to deportability under section 241 (a) (1) of the act. Consequently, respondent is deportable on the charge stated in the warrant of arrest. It is, therefore, deemed appropriate to request that the Board of Immigration Appeals reconsider and withdraw its order of April 2, 1954, and take such further action in the case as it deems appropriate.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of April 2, 1954, and take such further action in this case as it deems appropriate.
(July 16, 1954)
Discussion: The matter is before us on motion of the Assistant Commissioner, Inspections and Examinations Division, requesting that we reconsider and withdraw our order of April 2, 1954, and take such further action in the case as appears appropriate. In our previous order we approved the decision of the special inquiry officer, dated February 18, 1954, wherein he ordered termination of the deportation proceedings on the basis of a full and complete pardon granted the respondent on November 18, 1953, covering the crimes of uttering a forged instrument and larceny, such pardon being granted by the Governor of the Commonwealth of Massachusetts.
The record relates to a native and citizen of Canada, 42 years old, female, who was lawfully admitted to the United States for permanent residence on January 6, 1912. On August 4, 1931, the respondent was convicted on her plea of guilty in the Superior Court, Suffolk County, Mass., of the crimes of uttering a forged instrument and larceny. Thereafter she made brief visits to Canada in 1940 and 1943 and last entered the United States about July 1943 at Newport, Vt., being admitted as a returning resident alien.
Section 19 (a) of the Immigration Act of 1917, as amended, (8 U.S.C. 155 (a) 1940 ed.) contains the following proviso:
Provided further, That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this Act; * * *.
In interpreting the proviso relating to valid pardons and recommendations against deportation the rule was laid down that the effectiveness of such pardons and recommendations against deportation was not limited to deportation proceedings based on the commission of a crime subsequent to entry but was also effective as to commission of crime prior to entry; that the proviso applied equally to exclusion and deportation proceedings and to arrest and deportation proceedings.
Perkins v. United States ex rel. Malesevic, (supra); Rasmussen v. Robinson, (supra); Matter of H---- and Y----, (supra).
It is contended, however, by the Service that section 241 (b) of the Immigration and Nationality Act represents a change in the law and must be given effect. Section 241 (b) provides as follows:
The provisions of subsection (a) (4) respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, or (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.
It is the position of the Service that in view of the specific reference to subsection (a) (4) of section 241 of the Immigration and Nationality Act (which provides for the deportation of aliens convicted of a crime involving moral turpitude committed within 5 years after entry and sentenced or confined to imprisonment for a year or more, or who at any time after entry are convicted of two crimes involving moral turpitude), the forgiveness aspect of pardons and recommendations against deportation must be confined to this particular ground of deportability.
It is true that we have given effect to the change in statutory language so as to make the pardon feature not applicable in certain situations. Thus in Matter of R----, ( supra), we held that in view of the limitation in section 241 (b) to full unconditional pardons by the President of the United States or by a Governor of any of the several States, a legislative pardon under the law of Pennsylvania was no longer effective to prevent deportation under a charge laid under the provisions of section 241 (a) (4) of the Immigration and Nationality Act; likewise we held in Matter of I----, ( supra), that a recommendation against deportation upon a charge predicated upon a narcotic violation was not a bar to deportation under section 241 (a) (11) because narcotic violations were not referred to in section 241 (b). We have also concluded that conditional pardons were not effective under section 241 (b) of the Immigration and Nationality Act because this section specifically refers to full and unconditional pardons. However, we do not believe that these references are necessarily dispositive of the question in this case since the disposition of those cases rested upon other terminology in section 241 (b).
It is to be remembered that the respondent in the present case is deportable under section 241 (a) (1) of the Immigration and Nationality Act on the ground that at the time of entry she was within one or more of classes of aliens excludable by the law existing at the time of such entry because of the commission and admission of a crime. It is to be noted that section 241 (b) refers to the deportation of an alien convicted of a crime or crimes. Thus, in both instances, the subject matter is in pari materia. We are aware of no congressional intent to be more lenient to a person convicted of a crime in the United States subsequent to an entry than to a person convicted in the United States subsequent to an original entry and prior to a reentry.
We are not here dealing with a foreign pardon, or a legislative pardon, or a conditional pardon. The important feature is that a governor of a state has granted a valid pardon of a crime committed in the United States. Previously such a pardon was effective to "immunize" the offending alien from being expelled from this country because of that criminal conduct. Paraphrasing an analogous situation under the 1917 Immigration Act respecting a recommendation against deportation, it is not inconsistent with the legislative pattern for the enforcement of the immigration laws to hold, that the relief from expulsion granted under the pardoning clause should be extended to immunize the same alien for the same offense when he seeks to reenter the United States, where such an alien committed his offense in the United States and a valid pardon has been granted to prevent his expulsion; essentially, it does not matter whether the alien is the subject of exclusion proceedings or warrant proceedings.
Matter of H---- and Y----, 3 IN Dec. 236, 243.
An examination of the legislative history of the Immigration and Nationality Act fails to disclose any intent to change the prior administrative and judicial holdings that pardons were equally effective in exclusion or in expulsion proceedings. Mr. Walter M. Besterman, Legislative Assistant, Committee on the Judiciary, House of Representatives, in his commentary on the Immigration and Nationality Act, stated that an alien deportable because of conviction of a crime or crimes involving moral turpitude will not be deported if, subsequent to his conviction, he has been granted a full and unconditional pardon by the President of the United States or by the Governor of any State. The substance of section 241 (b) is that deportation shall not be undertaken against a convicted alien who has been pardoned upon the basis of the crime or crimes which constitute the subject matter of the pardon. There is no sound basis in logic or in reason to hold that this pardoning forgiveness or immunity applies to an alien who has been convicted of a crime involving moral turpitude within 5 years after entry, and not to the case of the instant respondent, who has resided in this country since 1912 and who committed a crime prior to her last entry as a returning resident in 1943. To adopt such a construction would in effect negate a clearly expressed congressional intent to immunize the pardoned criminal from the consequences of his criminal act.
8 U.S.C. p. 63 (1952 edition).
It is concluded therefore that the pardoning provision contained in section 241 (b) of the Immigration and Nationality Act includes not only the criminal who is deportable under section 241 (a) (4), but also the criminal who is deportable under section 241 (a) (1) because a member of a proscribed criminal class, section 212 (a) (9), at time of entry. As long as there is a full and unconditional pardon granted by the President or by a Governor of a State covering the crime which forms the ground of deportability, whether in exclusion or in expulsion, the immunizing feature of the pardon clause applies, and such a crime no longer forms a basis for deportability. The motion to reconsider will accordingly be denied.
Order: It is ordered that the motion to reconsider and withdraw our prior order affirming the decision of the special inquiry officer terminating the proceedings be and the same is hereby denied.