Post-Conviction Relief for Immigrants

 

California.  Under California Penal Code § § 4800 et seq., a pardon may be based on either innocence or rehabilitation.  Generally, a pardon based on rehabilitation will be obtained by securing a “certificate of rehabilitation” under California Penal Code § 4852.  A person convicted of a felony and committed to state prison or other institution may petition for the certificate after having resided in California for a “rehabilitation period,” during which time the person has lived an upright, sober and law‑abiding life.  Under § 4852.03, the required rehabilitation period is calculated based on the maximum possible sentence for the crimes committed; a minimum three‑year period is required.  The period begins after completion of sentence or termination of parole or probation.

 

            After the rehabilitation period has been completed, a person may file for a hearing in superior court on the matter.  A certificate of rehabilitation is in fact a court‑issued recommendation that the governor grant a pardon, and constitutes an application for a pardon.[153]

 

            Misdemeanants may not petition for a certificate of rehabilitation,  and persons convicted twice of a felony must meet special requirements under California Penal Code § 4852.  Other persons, such as sex offenders, are not eligible.[154] 

 

            Persons who are not eligible for a certificate of rehabilitation or who assert that they are innocent of the charges may apply for a pardon directly to the governor.  Under California Penal Code § 4801, the Board of Prison and Paroles may recommend that the governor issue a pardon or commutation of sentence for individuals who are in state prison.  The governor grants or denies any pardon as a matter of discretion.

 

            Now that Arnold Schwartzenegger is Governor of the State of California, prospects of obtaining an executive pardon may have improved.  In the opening weeks of his reign, he has paroled several persons convicted of murder under sympathetic circumstances who have served lengthy sentences and turned their lives around.  He does not appear to need to avoid granting any boons to criminals because his right-wing credentials are sufficiently strong.  Therefore, it may have become worthwhile to apply for a pardon in California for the first time in many years.

 

Georgia.  An unconditional pardon given by the Georgia State Board of Pardons and Paroles to a Greek permanent resident who had been convicted of simple larceny was held sufficient, where it was the only unconditional executive pardon that could be obtained in Georgia.[155]

 

More recently, the Georgia pardon board, insulated to some extent against the political pressures that preclude so many governors from exercising the power to pardon, has become active in granting pardons to avoid immigration consequences.  In Georgia, it is apparently the practice to sentence every misdemeanant to 12 months custody, and then suspend execution of that sentence in many cases so as to place the defendant on probation.  This practice has the unfortunate effect, under immigration law, of making many common misdemeanors, such as shoplifting and simple assault, into aggravated felonies.  In a celebrated case, in which a woman had been convicted of assault for pulling another person’s hair, the Georgia Board of Pardons and Paroles granted a pardon to avert imminent deportation on account of a misdemeanor aggravated felony.  This was followed by many more, and perhaps 50 such pardons have now been issued in Georgia.

 

Louisiana.  In Matter of Nolan,[156] the Board held that a pardon automatically given to an immigrant from Ireland pursuant to a state constitutional provision did not qualify as a full and unconditional pardon for immigration purposes.  The pardon was issued pursuant to the Louisiana Constitution, which partly provided that on the recommendation of the Board of Pardons the governor may commute sentences, pardon those convicted of criminal offenses, and remit fines and forfeitures imposed therefor, and also that “a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the Governor.”  The BIA held that the pardon in this case was neither “full,” since it did not restore his former status of innocence, nor “unconditional,” since it was specifically conditioned on his completion of the sentence imposed for his conviction.  The BIA rejected the argument that because, under Louisiana law, no pardon was available to the noncitizen as a first-felony offender that would satisfy the requirements of the immigration laws, the crime of which he had been convicted should not be considered a “crime” for the purpose of deportability, overruling Matter of Cevallos.[157]

 

Washington State.  In the last few years, the Washington State Governor has been granting executive pardons for immigration purposes in selected cases in which the political downside is not too great.  Perhaps 10 or so pardons have now been granted.  It is therefore worth applying for an executive pardon in a highly sympathetic case in which considerable community support is present.

 

Wisconsin.  In Matter of R,[158] the BIA held the Governor’s Pardon received by a Mexican citizen was not sufficient to eliminate the immigration effects of convictions for rape, adultery, false swearing, and child abandonment, claiming it was a restoration of rights only, not an absolute pardon, and was issued as a matter of executive clemency in reward for rehabilitation, under a law making the restoration of rights automatic.  The BIA remanded the case, following the termination of deportation proceedings, to afford the noncitizen an opportunity to apply for a full and unconditional pardon under Wisconsin law.  The BIA observed that Matter of G,[159] which treated a certificate of executive clemency as a pardon under the Immigration Act of 1917, had involved the restoration of civil rights by the governor of Wisconsin in June 1946 before the 1947 session of the Wisconsin legislature, which passed a law providing for the automatic restoration of civil rights to a person by serving out his or her term of imprisonment or otherwise satisfying a sentence.  Before the 1947 legislation, civil rights could be restored only by a pardon, according to a 1916 opinion of the Wisconsin attorney general.  The then-incumbent attorney general had stated that the June 1946 order of the governor restoring civil rights was in legal effect a full pardon.

[153] See generally 5 Erwin, Millman, Monroe, Sevilla, Taklow, California Criminal Defense Practice, chap. 105 (executive clemency).

[154] See California Penal Code § 4852.01(d). Effective January 1, 1998, this provision states; “Th[e] chapter [beginning with section 4852.01 and establishing the certificate of rehabilitation procedure] shall not apply to . . . persons convicted of a violation of subdivision (c) of Section 286 [sodomy with a victim under age 14 or by force, fear, or retaliatory threat], Section 288 [lewd acts with a victim under age 14], subdivision (c) of Section 288a [oral copulation with a victim under age 14 or by force, fear, or retaliatory threat], Section 288.5 [continuous sexual abuse of a victim under age 14], or subdivision (j) of Section 289 [sexual penetration with a victim under age 14] . . . .”

[155] Matter of D, 7 I. & N. Dec. 476 (BIA 1957).  See also Matter of Cevallos, 12 I. & N. Dec. 750 (BIA 1968), overruled on other grounds by Matter of Nolan, 19 I. & N. Dec. 539 (BIA 1988) (pardon by a pardon board consisting of the Governor and other cabinet members is effective for immigration purposes, and pardon by the mayor for violation of a city ordinance is an effective pardon when the mayor constitutes the only pardoning authority).

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

[157] Matter of Cevallos, 12 I. & N. Dec. 750 (BIA 1968).

[158] Matter of R, 8 I. & N. Dec. 677 (BIA 1960).

[159] Matter of G, 4 I. & N. Dec. 73 (BIA 1950).