E-050477.
Decided by Board July 19, 1954.
Pardon — Section 241 (b) of Immigration and Nationality Act — Effective when granted by Governor of Hawaii.
Since the word "State" is defined in section 101 (a) (36) of the Immigration and Nationality Act as including Hawaii, a full and unconditional pardon granted by the Governor of Hawaii for criminal offenses is effective under section 241 (b) of the act.
DEPORTABLE:
Act of 1952 — Section 241 (a) (4) — At any time after entry, convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct — Sexual intercourse with a female under 16 years; and lascivious conduct.
BEFORE THE BOARD
Discussion: This case is before us on certification of the special inquiry officer dated April 7, 1954, terminating the proceedings. Respondent, a 74-year-old native and citizen of Japan, last entered the United States on December 31, 1899, at Honolulu, T.H.
On April 4, 1945, respondent was convicted on a plea of guilty in the Circuit Court, 3d Judicial Circuit, Territory of Hawaii, of two violations of section 6243, Revised Laws of Hawaii, 1935. These offenses were committed on March 1, and April 30, 1944, when respondent had sexual intercourse with a female under 16 years, who was the wife of another. He was sentenced to a maximum of 10 years' imprisonment at Oahu Penitentiary, Territory of Hawaii. This sentence was suspended and 5 years' probation ordered.
Sexual intercourse with a female under 16. Whoever shall be convicted of having sexual or carnal intercourse with any female under the age of 16 years, not his lawful wife, shall be imprisoned at hard labor for not more than 10 years. (P.C. 1869, c. 13, s. 9; am. L. 1907, c. 32, s. 1; am. L. 1913, c. 27, s. 1; R.L. 1925, s. 4440; am. L. 1925, c. 46, s. 1.)
On May 17, 1951, respondent was convicted on a plea of guilty in the District Court, Southern Hilo, Territory of Hawaii, of a violation of section 11673, Revised Laws of Hawaii, 1945 (as amended by sec. 1 of Act 26 of Session Laws of Hawaii for 1949). This offense committed on April 12, 1951, consisted in lascivious conduct as a result of respondent's having sexual intercourse with a 17-year-old female and paying her $7 for this act. Respondent was sentenced to serve 6 months in jail and pay a fine of $100. The sentence of imprisonment was suspended with 13 months' probation being ordered.
Lascivious conduct, etc. — Any man or woman who is guilty of lewd conversation, lascivious conduct, or libidinous solicitations, or who solicits, induces, entices or procures another to commit an act of lewdness, assignation or prostitution with himself or herself, shall be punished by imprisonment of not more than 1 year or by a fine of not exceeding $1,000, or by both such imprisonment and fine. (P.C. 1869, c. 13, s. 8; R.L. 1925, s. 4447; R.L. 1935, s. 6253; am. L. 1941, c. 88, s. 1; am. L. 1949, c. 26, s. 1.)
On March 3, 1954, respondent received a "free and full' pardon for these crimes from the Acting Governor of Hawaii. The pardoning power of the Governor of Hawaii stems from the following statutory sources:
48 U.S.C. 1453. Executive Power. — The executive power of each Territory shall be vested in a governor, who shall hold his office for 4 years, and until his succesor is appointed and qualified, unless sooner removed by the President. He shall reside in the territory for which he is appointed, and shall be commander in chief of the militia thereof. He may grant pardons and reprieves, and remit fines and forfeitures, for offenses against the laws of the territory for which he is appointed, and respites for offenses against the laws of the United States, till the decision of the President can be made known thereon. He shall commission all officers who are appointed under the laws of such territory, and shall take care that the laws thereof be faithfully executed (R.S. 1841).
Section 66. Chapter III, Organic Act of Hawaii. — That the executive power of the Governor of the Territory of Hawaii shall be vested in a governor, who * * * may grant pardons or reprieves for offenses against the laws of said territory and reprieves for offenses against the laws of the United States until the decision of the President is made known thereon. (As am. July 9, 1921, 42 Stat. at L., c. 42, s. 303; 48 U.S.C. 531.)
Section 3965. Revised Laws of Hawaii, 1945. — Each board of prison inspectors and the board of paroles and pardons shall consider every application for a pardon which may be referred to it by the governor and shall furnish the governor, as soon as may be after such reference, all the information possible concerning the prisoner, together with a recommendation as to the granting or refusing of such pardon. (L. 195, c. 41, s. 5, am. imp. L. 1911, c. 5, s. 2; R.L. 1925, s. 1545; R.L. 1935, s. 6410, 6419.)
The special inquiry officer held that while section 241 (b) does not specifically mention a pardon by a territorial governor, Congress intended to include the territories in the phrase "several States" and that deportation under section 241 (a) (4) is rendered impossible. 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 * * *.
Since the word "State" is defined in section 101 (a) (36) as including Hawaii, a pardon by a territorial governor is effective under section 241 (b), if it is a full and unconditional one. In the instant case, the pardon granted respondent is by its very terms a free and full pardon for the offenses which are the basis for the ground of deportability. Because the pardon has the effect of nullifying the basis of deportation, the proceedings should be terminated. The order of the special inquiry officer is accordingly affirmed.
Order: It is hereby ordered that the order of the special inquiry officer terminating the proceedings be affirmed.