55845/168.
Decided by Board May 20, 1946. Ruling by Attorney General on May 27, 1946.
Pardon — Legislative grant — Deportation bar — Section 19 of the Immigration Act of 1917 — Effect of repeal of State pardon statute (Pennsylvania).
Where a state statute (Pennsylvania) provided for legislative pardon upon completely enduring the punishment imposed as a result of conviction and sentence in that state, and such statute was repealed before the alien completely endured such punishment, he is not deemed pardoned within the meaning of Section 19 of the Immigration Act of 1917.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes involving moral turpitude; bigamy, and arson.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: This record relates to a 45-year-old native and last a citizen of Russia whose only entry into the United States occurred on August 13, 1913. In July 1933, he was arrested in deportation proceedings and was charged with being unlawfully in the United States in that he had been sentenced subsequent to May 1, 1917, to imprisonment for a term of 1 year or more for the commission subsequent to entry of crimes involving moral turpitude.
A hearing under the warrant of arrest was granted the alien in April 1934. Evidence adduced at that hearing established that on June 28, 1926, the alien was sentenced to the New York State Prison at Sing Sing for a term of from 1 to 5 years following his conviction in that State of the crime of bigamy, the crime having been committed that same year. The alien served about 9 months of this sentence. Thereafter the respondent was arrested in the State of Pennsylvania and charged with committing arson in November, 1932. On the 22d of that month he was found guilty by a jury and the following day was sentenced to serve from 6 to 12 years in the Western State Penitentiary.
The case was first considered by the Board of Review of the Department of Labor in May 1934, while the respondent was serving his sentence in the Pennsylvania Penitentiary. It found on the basis of the foregoing evidence that the warrant charge was sustained and recommended that an order of deportation be entered, execution of which was to be deferred until the alien was released from imprisonment. The Assistant Secretary of Labor approved this recommendation on May 16, 1934, and a warrant of deportation, dated June 6, 1934, was thereafter issued. This warrant has not yet been executed.
The order and warrant of deportation erroneously describe the crimes involved in the proceeding as burglary and arson. The respondent was never convicted of burglary and the word "burglary" should read "bigamy."
The respondent was released from the Pennsylvania Penitentiary sometime in the year 1938, and was placed on parole for the period of his maximum sentence. He was finally discharged from parole by the Pennsylvania authorities on December 23, 1944. On September 28, 1945, he filed a motion with this Board requesting, in substance, that the deportation order be reconsidered. He claims that since he has served the complete sentence imposed on him by the Pennsylvania Court in 1939, he must be deemed to have been pardoned of the arson offense under section 181 of the act of March 31, 1860, P.L. 382.
Section 181 of the act of March 31, 1860, prior to its repeal, read:
Where any person hath been or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjuged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted: Provided, That nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony or misdemeanor, and that the provisions of this section shall not extend to the case of a party convicted of wilful and corrupt perjury.
An alien who completely endures the punishment imposed upon him in the State of Pennsylvania in accordance with the above statute has been held to be fully and unconditionally pardoned within the meaning of the act of February 5, 1917 ( Perkins v. U.S. ex rel. Malesevic, 99 F. (2d) 255 (C.C.A. 3d, 1938)). But, section 181 of the act of March 31, 1860, was repealed by section 1201 of the act of June 24, 1939, P.L. 872, effective as of September 1, 1939. This respondent was convicted and sentenced prior to the repeal of the statute. On the effective date of the repeal, however, he had not yet completely endured the punishment imposed. He was then, and until December 23, 1944 he remained, in the custody of the Pennsylvania authorities and under their jurisdiction. The issue raised is whether the respondent, under these circumstances, must be deemed to have been pardoned under the Pennsylvania statute.
The Board in Matter of R----, 56011/812 (October 8, 1942), a case involving the precise issue now before us, held that the alien was pardoned. Upon reconsideration, the Board is now of the opinion that the R---- case was incorrectly decided. We think that under Pennsylvania law with respect to pardons the alien obtained no vested or any other right at the time of his conviction in 1932 or at any time subsequent thereto. We are of the further opinion, for the reasons to follow, that the repeal of the pardon statute at a time when the alien was still enduring the punishment imposed upon him terminated whatever right he might have had to obtain a pardon under this statute. The outstanding order and warrant of deportation with appropriate amendments to correct the description of the crimes should remain in full force and effect and the alien's deportation should be carried out.
It is axiomatic that a pardon is an act of grace and mercy ( United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833); Commonwealth v. Ahl, 43 Pa. 53 (1862); Commonwealth v. Halloway, 44 Pa. 210 (1863)). Until delivered and accepted by the grantee, it confers no rights of any kind, and may be canceled at the will of the grantor. It is only upon the delivery and acceptance that the criminal obtains any legal or vested right in the pardon. Commonwealth v. Halloway, supra; see also Commonwealth v. Ahl, supra.
"The intention of the executive to grant a pardon can have no legal force until carried into completed act. * * * The completed act is the charter of pardon and delivered. This is the one and only step that gives title to a pardon. Until delivery, all that may have been done is mere matter of intended favor, and may be canceled to accord with a change of intention." Commonwealth v. Halloway, supra, p. 217.
Ordinarily in case of an absolute pardon granted by the executive, acceptance will be presumed upon delivery unless the criminal affirmatively dissents. See Redd v. State, 65 Ark. 475 (1898); Ex parte Powell, 73 Ala. 517 (1883); Michael v. State, 40 Ala. 361 (1867).
Inherent in the pardoning power is the right to make the pardon absolute or conditional. Case of Flavell, 8 Watts S. 197 (Pa., 1844); United States v. Wilson, supra. And the condition may be either precedent or subsequent. If it is subsequent, the pardon, assuming a delivery and an acceptance, becomes immediately effective subject to becoming null and void upon nonperformance or violation of the condition. If precedent, the pardon cannot become operative until and unless the condition is fulfilled. Case of Flavell, supra. This is because there can be no completed delivery and acceptance until the condition precedent is satisfied. In such case no rights are obtained when the pardon is issued and it may be revoked at any time prior to the satisfaction of the condition precedent.
In Huff v. Aldredge, 192 Ga. (1941), a criminal have been granted a pardon on condition that he enter the Civilian Conservation Corps. After making application for admission to this Corps, the criminal was arrested again. The governor then revoked the pardon. The issue before the court was whether the pardon was effective. The court held the pardon inoperative, saying (pp. 17, 18):
"As related to a condition precedent, a time limit is unimportant since the status of the prisoner is unchanged and the pardon is inoperative until all such conditions are satisfied. In the meantime the Governor may withdraw it if he chooses. It is a mere offer to pardon, made as a matter of grace and without consideration flowing from the prisoner. For it the prisoner has paid nothing, and in it he has no rights before it has been accepted by satisfying every condition precedent * * * The fact that the pardon in the present case was delivered to the prisoner does not show an acceptance, since the condition stipulated therein has not been met. * * * The failure of the prisoner * * * to satisfy the condition contained in the pardon caused a failure of such delivery as would make the pardon operative."
To like effect see Allman v. Aldredge, 192 Ga. 431 (1941); Ex parte Marks, 64 Cal. 29 (1883); Ex parte Ray, 18 Okla. Cr. 167 (1920); see also 60 A.L.R. 1410, 1413, and cases cited there.
In the R---- and the instant case, the pardon involved was legislative and not executive. Nonetheless, the rights, if any, acquired under it are to be considered in the light of the foregoing rules (Cf. United States v. Hughes, 175 Fed. 238 (D. Pa., 1892), affirmed, for want of prosecution, in 154 U.S. 505 (1893)). It is clear from the wording of the statute, and indeed it has been held in the Hughes case, that the Pennsylvania legislative pardon was conditional. The condition was precedent, namely, that the criminal completely endure the punishment imposed upon him by reason of the sentence. In other words, no rights could be obtained under the act of the Pennsylvania legislature unless and until the condition in the statute was satisfied. (See Perkins v. U.S. ex rel. Malesevic, 99 F. (2d) 255 (C.C.A. 3rd, 1938).) This conditional pardon was revoked by the grantor, in this case the legislature, as of September 1, 1939, by its repeal of the pardon statute through the enactment of the act of June 24, 1939, P.S. 872. This revocation necessarily prevented the conditional legislative pardon from becoming absolute or operative in the cases of those criminals of the classes intended to be benefited who had not as of September 1, 1939, endured the punishments to which they had been sentenced.
See Michael v. State, supra. In that case the Governor, pursuant to an act of the legislature, had issued a proclamation pardoning those who had commited offenses (except rape and murder) between October 13, 1861, and August 20, 1865. Shortly after the latter date the statute in accordance with which the Governor had acted, was repealed. The defendant was thereafter charged with assault and battery, committed within the period covered by the statute. The defendant pleaded the pardon. The court held that since the record did not show that the defendant had accepted the pardon prior to the repeal of the basic statute, the pardon, so far as he was concerned, never became effective.
This alien had not completely endured his punishment as of September 1, 1939. He was still under the jurisdiction of the Pennsylvania authorities and was subject to the restraints imposed by them. Not having completely endured the punishment, he had not satisfied the condition precedent contained in the statute and, accordingly, acquired no rights. He cannot therefore be said to have been pardoned as of September 23, 1944, when he was finally discharged from parole and when the statute was no longer in effect.
See U.S. ex rel. Forino v. Bromberg, 61 F. Supp. 1021 (W.D. Pa., 1945). In that case the alien, on December 5, 1932, was sentenced to a term of not less than 8 and not more than 16 years on a murder charge. He was released after serving his minimum sentence, but remained under the jurisdiction of the court during the maximum sentence period. After the alien was ordered deported, he claimed that he had been pardoned under the statute. The court held that he was not pardoned since he had not yet fully satisfied the sentencing court's judgment. While apparently no account was taken by the court of the fact that the pardon statute had been repealed while the alien was serving his minimum sentence, the necessary implication from the holding is that the alien acquired no rights under the statute at the time of conviction. (See U.S. ex rel. Forino v. Garfinkel 166 F. (2d) 887, C.C.A. 3, 1948.)
It is directed, That the order of May 16, 1934, and the warrant of deportation predicted thereon remain in full force and effect except that the description of the crimes contained therein be amended to read "bigamy and arson."
It is further directed, That pursuant to section 90.12, title 8, Code of Federal Regulations, this case be certified to the Attorney General for review of the Board's decision on the ground that a dissent has been recorded.
The Attorney General approved the view of the majority.
We do not agree with the majority of the Board that the alien in this case is now subject to deportation. We think that the R---- decision was sound and that because of the reasons there given the alien has now been pardoned for the offense of arson, of which he was convicted in the Commonwealth of Pennsylvania. That being the case, the warrant charge is no longer valid. The outstanding order and warrant of deportation should be withdrawn and the proceedings dismissed.