Tooby's California Post-Conviction Relief for Immigrants

The fact that a foreign jurisdiction granted a pardon may not be considered in determining whether a conviction is for an offense that involves moral turpitude.[194]

            In the Ninth Circuit, counsel can argue that a foreign pardon, like a foreign expungement, should be effective to eliminate a first conviction of simple possession, and similar offenses, in the Ninth Circuit where state rehabilitative relief is effective to do so, since the Ninth Circuit held foreign rehabilitative relief effectively eliminates a conviction for all immigration purposes.[195]  The Ninth Circuit has not insisted that the rehabilitative relief (state or foreign) be identical to the Federal First Offender Act to be effective, so long as it is rehabilitative relief.  See § 10.15, supra. A pardon is clearly a form of rehabilitative relief, since it is granted based on the rehabilitation of the defendant since the offense occurred.

            Prior law clearly held foreign pardons are not effective to nullify a conviction.[196]

            Moreover, even full federal or state executive pardons, that would eliminate CMTs or aggravated felonies, do not eliminate drug convictions.[197]

            The Ninth Circuit in Dillingham distinguished the foreign pardon cases cited by the government, saying they were virtually all CMT cases:

            It is unsurprising that courts have not found any problematic equal protection implications for aliens deported (or deemed inadmissible) for such crimes, given that they would not have qualified for expungement under an applicable federal statute anyway. Cf. Carr v. INS, 86 F.3d 949, 952 (9th Cir. 1996) (holding that Garberding was of no help to an alien who was convicted of a firearms offense and subsequently ordered deported by the INS, because Garberding "did not speak to the issue of treating aliens differently on the basis of the crimes they had committed"). The court continued: "The one exception -- Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992) -- involved convictions for drug possession for purposes of trafficking, not simple possession, and thus would not have been subject to FFOA rehabilitation either." (Id. at 1377.)  The pardon in that case went unrecognized for immigration purposes because no pardons of drug offenses are recognized under the INA, whether foreign or domestic. (Id. at 1379 n.7; 8 U.S.C. § 1227(a)(2)(B). But cf. 8 U.S.C. § 1227(a)(2)(A)(v) (recognizing pardons of crimes of moral turpitude).[198]

            It is not because a foreign pardon of an offense qualifying for FFOA treatment is a pardon that it is effective under Dillingham: it is because the defendant would have been eligible for FFOA treatment if the offense had been prosecuted in federal court, so it would violate equal protection to hold this rehabilitative relief was ineffective, where state or federal FFOA-type relief was effective, simply because of the jurisdiction of the prosecution.

[194] Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992), opinion amended on denial of rehearing, 986 F.2d 1364 (11th Cir. 1992); Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. denied, 305 U.S. 611, 59 S.Ct. 69 (1938); Palermo v. Smith, 17 F.2d 534 (2d Cir. 1927); Consola v. Karnuth, 108 F.2d 178 (2d Cir. 1939); Weedin v. Hempel, 28 F.2d 603 (9th Cir. 1928); Vidal y Planas v. Landon, 104 F.Supp. 384 (S. D.Cal. 1952); Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960) (foreign pardon or expungement by German authorities of a German’s simple larceny and concealing stolen goods convictions did not eliminate them as a basis for deportation); Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (foreign amnesty or pardon, Italy); Matter of B, 7 I. & N. Dec. 166 (BIA 1956) (amnesty); Matter of FYG, 4 I. & N. Dec. 717 (BIA 1952); Matter of G, 5 I. & N. Dec. 129 (BIA 1953); see Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (foreign expungement effective by analogy to FFOA, distinguishing foreign pardons).  Cf. Matter of K, 9 I. & N. Dec. 336 (BIA 1961) (pardon issued by U.S. High Commissioner for Germany recognized).

[195] Dillingham v. Ashcroft, 267 F.3d 996 (9th Cir. 2001).

[196] See Matter of Dillingham, 21 I. & N. Dec. 1001, 1004 (BIA Aug. 20, 1997) ("It has been held that the pardon provision of the Act applies only to pardons granted in the United States for crimes committed in this country after entry and that a foreign amnesty or pardon will therefore not render a foreign conviction ineffective for immigration purposes. Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992), amended on rehearing, 986 F.2d 1364 (11th Cir. 1993); Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Weedin v. Hempel, 28 F.2d 603 (9th Cir. 1928); Zgodda v. Holland, 184 F. Supp. 847 (E.D. Pa. 1960). . . Matter of B, 7 I&N Dec. 166 (BIA 1956); Matter of F-yG-, 4 I&N Dec. 717 (BIA 1952).5).").

[197] See Matter of Suh, 23 I. & N. Dec. 626, 627 (BIA 2003) ("Other removable offenses, such as controlled substance violations under section 237(a)(2)(B), certain firearm offenses under section 237(a)(2)(C), and violations of protection orders under section 237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of section 237(a)(2)(A)(v) of the Act).")

[198] Dillingham v. INS, 267 F.3d 996, 1008 n.13 (9th Cir. 2001).