Post-Conviction Relief for Immigrants

By obtaining an executive pardon, persons convicted of listed deportable offenses[118] may remove their immigration consequences, as well as the effects of the resulting sentences and confinement.[119]  Moreover, under the statute, only executive pardons issued by the President of the United States or a state governor will provide immigration relief; legislative pardons have no effect.

            The BIA has held that the fact that no executive pardon is available under the laws of a state will not prevent the conviction from having immigration consequences.[120]  (It formerly held that if a conviction occurs in a jurisdiction in which there is no authority to grant a pardon, the conviction may not be regarded a being for a “crime” for purposes of deportation or removal.)[121]

            While the BIA has held that the new IIRAIRA definition of “conviction” eliminated relief under “state rehabilitative statutes,”[122] and there is some question whether the statutes allowing for state executive pardons would be considered “state rehabilitative statutes” under this authority, the effectiveness of pardons is grounded on specific federal legislation, so they remain effective to eliminate the adverse immigration consequences specified in the statute.[123]

[118] A pardon will be effective for one or more convictions of crimes of moral turpitude, aggravated felonies, high speed flight from immigration checkpoint.

[119] INA § 241(a)(2)(A)(iv), 8 U.S.C. § 1251(a)(2)(A)(iv) (moral turpitude, aggravated felony); Matter of H, 7 I. & N. Dec. 249 (BIA 1956) (pardon eliminates confinement for purposes of 180‑day good‑moral‑character requirements).  See Annot., What Constitutes Full and Unconditional Executive Pardon Under  § 241(b) of Immigration and Nationality Act of 1952 . . ., 101 A.L.R. Fed. 668.  By analogy, the Ninth Circuit has held that an unqualified state court restoration of rights bars a federal felon-with-gun conviction.  United States v. Herron, 45 F.3d 340 (9th Cir. 1995).

[120] Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988).

[121] See C. Gordon, Immigration Law and Procedure § 71.05[1][c][i] (2003).

[122] Matter of Salazar-Regino, 23 I. & N. Dec. 223 (BIA 2002) (en banc).

[123] INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v).