A-4961824
Decided by Board June 27, 1956
Good moral character — Section 101 (f) (7), Immigration and Nationality Act — Pardon for offense for which confined removes bar to showing of good moral character.
A pardon which eliminates the crime as a basis for deportation proceedings should immunize the alien from the statutory bar to the establishment of good moral character because of confinement for that very crime. Hence, an alien who was granted a pardon in 1954 for her conviction of larceny resulting in confinement in a penal institution for more than two years of the period during which good moral character must be proved is not precluded from establishing good moral character by the provisions of section 101 (f) (7) of the Immigration and Nationality Act.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of two crimes after entry, larceny from a store (1937) and larceny from a store (1938).
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding the respondent deportable upon the ground stated above and holding that she was statutorily ineligible for discretionary relief. The sole issue before us is the availability of discretionary relief. The issue is raised by the fact that section 101 (f) (7) of the act ( 8 U.S.C. 1101 (f) (7)) provides that a person cannot establish good moral character during the period for which good moral character must be established if he has been confined as a result of conviction, to a penal institution for an aggregate period of 180 days or more. The respondent is required to establish good moral character for a ten-year period preceding her application for suspension of deportation which was submitted in November 1955. The respondent was confined, as a result of conviction in 1944 for larceny, to a penal institution from November 1944 to March 2, 1948. She was, therefore, confined for over two years of the period during which good moral character is required to be established. Without more, she would, therefore, clearly fall within the provisions of section 101 (f) (7) of the act ( 8 U.S.C. 1101 (f) (7)) and would be precluded by law from establishing good moral character.
However, on December 23, 1954, the respondent was granted a pardon for the commission of the offense for which she was confined in 1944. The special inquiry officer ruled that notwithstanding the pardon, the respondent was a person who had been confined for an aggregate period of 180 days and more and was, therefore, precluded from establishing good moral character. Counsel argues that under Michigan law the pardon wiped out the violation of law and all punishment and placed the respondent in the same position as if the crime had never been committed, so that the confinement must be ignored. We find it unnecessary to consider whether a pardon in Michigan obliterates the fact of conviction or merely terminates confinement and removes the legal disabilities flowing from the fact of conviction. Congress has provided that aliens who are deportable by reason of conviction for crime may be removed from the deportable class if they have been pardoned for the crime in question. Therefore, we have held that this congressional indication of the desire to absolve the alien from the consequences of his criminal act, in effect, immunized him from all consequences flowing from that act so that even though the act provides that a person convicted of crime cannot establish good moral character, a pardon or expungement of the record of conviction removed the bar to the establishment of good moral character ( Matter of H----, T-1496858, 6 IN Dec. 619). So here, we believe that the pardon which eliminated the crime as a basis for deportation proceedings, should immunize the alien from the statutory bar created because of her confinement for that very crime. (See Petition of Ramsay, Petition No. 2271-P-538622 (U.S.D.C., E.D.N.Y., November 29, 1955); contra, Petition of De Angelis, 139 F. Supp. 779 (U.S.D.C., E.D.N.Y., 1956); Petition of Ferro, Petition No. 2846-P-4438 (Middle District Pa., May 10, 1956) ( dicta)).
Order: It is ordered that the outstanding order of deportation be and the same is hereby withdrawn.
It is further ordered that proceedings be reopened in accordance with the foregoing and for such further purposes as the special inquiry officer may deem appropriate.