A-5877015
Memorandum by Central Office, April 6, 1948 Decided by Board, November 22, 1948 Disapproved by the Acting Attorney General, February 4, 1950
Restoration of civil rights — State of Nebraska — Equivalence of "pardon" within the meaning of section 19, Immigration Act of 1917.
A certificate evidencing the restoration of a criminal's civil rights issued by the board of pardons in the State of Nebraska is not a pardon within the meaning of section 19 of the Immigration Act of 1917, and the deportation of the alien on the criminal ground is not averted thereby. (See Interim Dec. No. 158.)
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes involving moral turpitude, to wit: Forgery and hog stealing.
BEFORE THE CENTRAL OFFICE
Discussion: The respondent is a 58-year-old native and citizen of Germany, who entered the United States on November 3, 1906, at which time he was admitted for permanent residence. On December 11, 1940, he was convicted of forgery in the State of Nebraska and was sentenced to imprisonment in the State penitentiary for 3 years. After his release from imprisonment he was convicted of hog stealing in October 9, 1942, and was sentenced to the State penitentiary for 2 years. He was granted certificates restoring his civil rights lost as the result of his convictions for forgery and hog stealing, under section 29-2634, revised statutes Nebraska (1943) which reads:
Whenever any convict shall have completed the lawful requirements of his sentence, the board of pardons, upon receiving a certificate of good conduct from the warden, shall immediately issue a warrant for the discharge of such convict, and such warrant shall in all cases restore the prisoner's civil rights the same as though a pardon had been issued.
On December 3, 1945, this Service found the respondent subject to deportation and ordered that he be deported to Germany. On March 22, 1948, the Board of Immigration Appeals ordered that the warrant of arrest be canceled and the proceedings dismissed. As stated by the Board, the issue raised is whether the two certificates granted the respondent are pardons within the meaning of the Immigration Act of February 5, 1917.
The Board of Immigration Appeals has concluded that the warrant of discharge restoring civil rights under the Nebraska statute is a pardon within the meaning of the act of 1917 for the following two reasons: (1) The attorney general of the State of Nebraska, the most authoritative legal official of the executive department, has advised that a warrant of discharge has exactly the same effect as a pardon granted by the board of pardons in accordance with the Nebraska constitution: (2) That although the Attorney General of the United States in his memorandum of November 5, 1946 (file 23/115492), held that the Illinois statute under which a criminal's civil rights were restored was not a pardon within the meaning of the Immigration Act of 1917 because it excepted certain specific crimes, it is distinguishable from the Nebraska statute which is not limited to particular crimes or offenses.
The first reason advanced by the board is not persuasive. Not only the attorney general of the State of Illinois held that a certificate of restoration of civil rights was a pardon under the statutes of that State but the courts of that jurisdiction construed it in a like manner. And yet despite those holdings the Attorney General of the United States found that it was not a pardon.
There is not reason for giving greater weight to the opinion of the attorney general of the State of Nebraska, than was given to that of the attorney general of Illinois.
The second contention of the Board is based on the premise that the Attorney General of the United States held that the restoration of civil rights in Illinois was not a pardon because the statute excepted certain crimes from its operation. In his memorandum opinion of November 5, 1946, the Attorney General made the following statement:
For the reasons set forth in the accompanying memoranda from Assistant Attorney General Caudle, the chairman of the Board of Immigration Appeals, the pardon attorney, and the assistant solicitor general, I am of the view that a certificate of restoration of civil rights in Illinois may not be deemed a pardon for the purposes of the immigration laws.
Each of the officials mentioned gave different and persuasive reasons for his conclusion. There is nothing in the Attorney General's memorandum which shows exactly which of the reasons advanced impelled him to the conclusion he reached, but it is certainly doubtful whether he based such conclusion solely on the ground advanced by the Board in the instant case.
It would seem that the phrase "the same as though a pardon had been issued" in the Nebraska Statute providing that a warrant of discharge shall restore the prisoner's civil rights, is merely descriptive of the extent to which the warrant of discharge will restore such civil rights. The statute does not purport to grant a full pardon which might comprehend more than a restoration of civil rights. Furthermore, the grant of a warrant of discharge is automatic under the terms of the statute. To hold that the effect of this warrant is a pardon within the meaning of the immigration laws would be to negate in Nebraska those provisions of the Immigration Act of 1917 relating to the deportation of aliens convicted of crimes involving moral turpitude. It certainly seems doubtful that the Board's interpretation of what constitutes a pardon was that intended by Congress.
The Assistant Attorney General then in charge of the Criminal Division in considering the interpretation to be given the Illinois statute relating to restoration of civil rights commented:
* * * It is our opinion that this question should not be finally resolved administratively; and that unless or until a federal court shall hold that such a certificate is a pardon within the meaning of that term as used in the statute, the deportation of convicts falling within the section in question should be ordered * * *
This Service is of a like opinion.
In view of the Attorney General's holding in the matter relating to the restoration of civil rights under the Illinois statute, the seemingly unwarranted distinctions drawn by the Board of Immigration Appeals in the instant case, and the importance of the matter in connection with the enforcement of the immigration laws, it is believed that the Board's decision should be referred to the Attorney General in order that a definitive opinion may be obtained.
Recommendation: It is recommended that pursuant to 8 C.F.R. 90.12 (c) the Board of Immigration Appeals be requested to refer its decision in this case to the Attorney General for review.
Recommended.
Discussion: This case is before us on the Service's motion requesting reconsideration of our decision of March 22, 1948. In that decision we concluded that a certificate evidencing the restoration of a criminal's civil rights issued by the board of pardons in the State of Nebraska was a pardon within the meaning of the immigration laws. Our conclusion was based primarily upon several opinions rendered to us by the attorney general of the State of Nebraska, the highest legal officer in the executive department of that State. In reaching this conclusion we thought that the Nebraska statute now before us was so different from a statute in the State of Illinois dealing with the same subject matter that the Attorney General's memorandum opinion of November 5, 1946, holding that a restoration of civil rights in the State of Illinois was not a pardon within the scope of the Immigration Act of 1917, was not controlling. The Service, on the other hand, takes the position that the memorandum opinion of the Attorney General with respect to the Illinois statute governs with respect to the Nebraska statute involved in this case.
The Service takes issue on the weight we attach to the opinion of the attorney general of the State of Nebraska. It is axiomatic, of course, that Federal courts in interpreting State law are bound by the construction put upon that law by the court of last resort in the particular jurisdiction. Again, in the absence of more convincing evidence, the construction put upon State law by an intermediate State court should be followed by a Federal court in deciding a question involving the meaning of State law. See West v. American Tel. Tel. Co., 311 U.S. 223 (1940); Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940); Erie Railroad v. Tompkins, 304 U.S. 64 (1938). It follows that just as Federal courts are bound by the interpretation put on State law by State courts, Federal administrative agencies are likewise bound. It may be argued that in the absence of a controlling State court decision, the State attorney general's construction of a particular State statute should not be binding upon Federal courts or Federal administrative agencies. Nevertheless we think that under those circumstances the opinion of the State attorney general, the most authoritative legal officer in the executive department of the State, is very persuasive evidence as to the law of the particular State, and is entitled to weight.
See 1941 Wisconsin Law Review 528, 531, where the following statement was made:
"Like the courts and the legislature, administrative agencies, and State attorneys generally function as organs of the State in declaring, within certain spheres, what State law is. Though their pronouncements may not command the same respect within the State as do the high courts, under the rationale of the F---- case they express the voice of the State as a Federal court cannot, and their pronouncements in the absence of more convincing evidence of what is State law may become binding upon Federal courts."
In this particular case, as we pointed out in our decision of March 22, 1948, there are no judicial decisions in the State of Nebraska with respect to the interpretation of section 29-2634, revised statutes of Nebraska (1943), which deals with restoration of a criminal's civil rights. Under these circumstances and in accordance with the principles set forth above, we think that the interpretation of this statute by the attorney general of the State of Nebraska is entitled to a great deal of weight with respect to determining the difference, if any, between restoration of civil rights and an unconditional pardon in the State of Nebraska. This was our approach in our decision of March 22, 1948. We still think that approach was proper.
As we read the Service's motion, it seems to be more concerned with the name by which the documents obtained by respondent are called than with their intrinsic meaning. The issue is not whether the document presented by respondent is called a "pardon" or "restoration of civil rights." The issue, in our judgment, is whether the document granted respondent every right that he would have obtained if the board of pardons had issued him an unconditional pardon. And that is basically a question of State law. To approach the issue as the Service apparently does is to exalt form over substance.
In our decision of March 22, 1948, we answered the issue in the affirmative and accordingly dismissed the deportation proceedings. None of the reasons advanced by the Service convinces us that we were wrong. We still adhere to our original position.
We now take up the Service's contention that the Attorney General's memorandum opinion with respect to the Illinois statute dealing with a similar subject was not based upon the particular wording of that Illinois statute. We have reread the several memoranda written in connection with the Illinois statute, and we still think that one of the controlling reasons, if not the only one, for the Attorney General's conclusion was the peculiar wording of the Illinois statute. We repeat again that the Illinois statute was not as broad and as sweeping as the Nebraska one now before us. We also repeat that the Illinois statute excepted from its operation certain specific crimes. We still think that the Illinois statute is so materially different from the Wisconsin one that the attorney general's memorandum opinion of November 5, 1946, does not control.
(Nebraska.)
Finally, we note that the issue raised by the Service's motion is not limited to the State of Nebraska. Two cases now before us involve a similar statute in the State of Wisconsin. In these cases the Service holds that restitution of civil rights is not the equivalent of a pardon. But in another case, Matter of A----, 3386329, the Immigration and Naturalization Service, in a lengthy and exhaustive opinion on February 18, 1947, concluded that a restoration of civil rights in the State of Wisconsin was a pardon within the meaning of the immigration laws, and on that basis canceled deportation proceedings. In its opinion the Service took pains to distinguish the memorandum opinion of the Attorney General of November 5, 1946, with respect to the Illinois statute.
These cases ( Matter of T----, 1556398, and Matter of G----, 55933/494) are attached herewith for reference purposes. (Not here attached) (See Int. Dec. #158).
Note Matter of T----, supra, where the Immigration and Naturalization Service on February 11, 1947, had taken a contrary position. This case, as we said above, is now before the Board for consideration. See also Matter of G----, 1561424 (attached herewith for reference purposes) where we affirmed an order of the Service reopening the hearing. The Service, in its decision of February 11, 1947, in that case also took the position that a restoration of civil rights in Wisconsin was not a pardon. We approved the result reached by the Service in reopening the case, but our approval of the result did not necessarily mean that we agreed with the Service's statement as to the effect of a restoration of civil rights in Wisconsin.
The Service in the instant case makes no reference to its decision in the A---- case. Presumably the A---- case, decided subsequent to the other two Wisconsin cases referred to above, is still the most authoritative decision by the Service on the Wisconsin statute.
The reasoning in the A----- case we feel is inconsistent with the position taken by the Service in the instant case. We agree with the A----- case and reaffirm the position we have heretofore taken in the case now before us.
Order: The Service's motion for reconsideration of our order of March 22, 1948, is denied.
As a question of difficulty is involved, the Board certifies its decision and order to the Attorney General for review in accordance with 8 C.F.R. 90.12.
The decision and order of the Board of Immigration Appeals dated November 22, 1948 are hereby disapproved.