E-096427.
Decided by Board November 5, 1954.
Pardon — Section 241 (b) of Immigration and Nationality Act.
A pardon issued by a governor which specifies that its purpose is "to prevent deportation" is effective under section 241 (b) of the Immigration and Nationality Act. The language "to prevent deportation" is merely descriptive and does not set up a condition which, if violated, causes the pardon to become null and void.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted twice after entry — Murder, second degree, and petit larceny.
BEFORE THE BOARD
Discussion: The special inquiry officer's decision ordering deportation was appealed to this Board and oral argument was heard on May 5, 1954. During the pendency of that appeal and after oral argument, the respondent's representative filed a motion to reopen the case and to have it reconsidered in the light of a pardon granted the respondent, and that the proceedings thereafter be terminated. In view of the fact that the case was then properly before us on appeal, we shall so consider it rather than in motion proceedings.
The record relates to a 63-year-old male alien who was born in the City of Fiume and believes he is now a citizen of Yugoslavia because the place of his birth is now part of Yugoslavia. He alleged that his only entry into the United States took place in August or September 1906 at the port of New York, when he arrived as a member of the crew of the SS. Carpathia. That entry could not be verified.
Respondent was indicted on November 30, 1909, for the crime of murder in the first degree committed on October 18, 1909, and on November 30, 1909, he pleaded not guilty. On January 26, 1910, in the Supreme Court at Albany, New York, on a plea of guilty to murder in the second degree he was sentenced to a term of from 20 years to life for murder in the second degree. He was also sentenced by the Court of Special Sessions of the City of New York on December 6, 1938, to the workhouse for 60 days on the charge of petit larceny.
On July 26, 1954, the Governor of the State of New York granted a pardon to the respondent for the crime of murder in the second degree which was previously mentioned. This pardon contains, inter alia, the following:
Therefore, know ye, that we have pardoned, remised and released, and by these presents do pardon, remise and release, the said L---- F---- of and from the offense whereof, in our said Court, he stands convicted as aforesaid, and of and from all Sentences, judgments and Executions thereon, to prevent deportation. [Emphasis supplied.]
Section 241 (b) of the Immigration and Nationality Act, so far as is pertinent here, provides that the provisions of section 241 (a) (4) respecting the deportation of aliens convicted of crime shall not apply to an alien who has been granted a full and unconditional pardon by the Governor of any of the several States. The issue in the instant case, therefore, is whether the pardon obtained by the alien is full and unconditional. As we said in Matter of C----, E-076976, 5 IN Dec. 630, 633, B.I.A., January 19, 1954,
Since a pardon is an act of grace and mercy, inherent in the pardoning power is the right to make the pardon absolute or conditional, United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). A conditional pardon is one to which a condition is annexed, the performance of which is necessary to the validity of the pardon, Fehl v. Martin, 155 Oregon 455, 64 P. (2d) 631 (1937). Conditional pardons may be those involving conditions precedent or conditions subsequent. If there is a condition precedent, such condition must be performed before the pardon can take effect. If the pardon contains a condition subsequent, such condition, if violated, causes the pardon to become null and void ( State ex rel. Gordon v. Zangerle, 136 Ohio State 371, 26 N.E. (2) 190 (1940); The Attorney General's Survey of Release Procedures, vol. 3, p. 205 (1939)). On the revocation of a pardon for a breach of one of its conditions, the legal status of the person pardoned must be regarded as being the same as it was before the pardon was granted ( State ex rel. Gordon v. Zangerle (supra)).
Applying the foregoing tests to the instant case we find at once that there is no condition precedent attached to the pardon. Nothing must be done before the pardon can take effect. It has taken effect. Similarly, it appears that the words, "to prevent deportation" used in the pardon are merely descriptive words, employed to show why the pardon was granted. These words, being descriptive, do not set up a condition which, if violated, causes the pardon to become null and void. They merely describe that which motivated the exercise of executive clemency. They do not create a pardon with a condition subsequent. We, therefore, conclude that the pardon is full and unconditional. The conviction of murder in the second degree is therefore not to be considered in connection with deportability. That being so, the respondent is not deportable on the present record because he has only one conviction remaining against him and that is for a crime committed more than five years after his entry.
Order: It is ordered that the proceedings be, and the same are hereby terminated.