Interim 1Jegastuu 46
Mama or CEITALLOS
In Deportation Proceedings
A-12844327
A-12811195
A-11866690
Decided by Beard May 97, 1988
(1) The conviction of an offense for which there is no pardoning authority
within the purview of section 241(b) (1) of the Immigration and Nationality
Act is not a conviction of a "crime" within the meaning of section 241 (a) (4) of
the Act.
(2) Hence, respondent's deportation under section 241 (a) (4) of the Act, on the
basis of his convictions on two occasions in 1966 in the Municipal Court, North
Miami Beach, Florida, for shoplifting (petit larceny). is precluded since under
Florida law the mayors of municipalities have no authority to grant a pardon
for a conviction of a municipal offense nor does the Pardon Board of the State
of Florida have jurisdiction to pardon such offense as under Florida law
municipal offenses are not crimes.
CHARGE:
Order: Act ote 1052--Section 241 (a) (4) (8 U 8.0.1251(x) (4) 3--Convicted after
entry of two crimes invoiving moral turpitude, to wit ;
petit larceny and petit larceny.
ON BEHALF OF lbssrenDENT ON BEHALF OF SERVICE :
OURTRITO W. Larson, Esquire R. A. Violhgbor
5965 S.W. Eighth Street Appellate Trial Attorney
Miami, Florida 83144
The above-captioned cases are before us on certification by two special inquiry officers for review of their decisions to terminate the proceedings in the three cases. The legal issues involved in all three cases
are identical and they will be considered together. The Service moves
for an order by this Board vacating the orders terminating the
proceedings.
The male alien, married, 437 years of age, is a native and citizen of
Norway who was admitted for permanent residence at the port of New
York on October 2, 1959. He has been convicted on two occasions in
1966 in the Municipal Court, North Miami Beach, Florida for shop-
750
.1.11W1.1.11.1 AJC.,...71, 11.i wit iv vv
lifting (petit larceny). The female aliens, mother and daughter, both
married, are natives and citizens of Ecuador. They were admitted for
permanent residence at the port of Miami, Florida on November 28 and
November 24, 1962, respectively. They were convicted in the Municipal
Court of the City of Miami, Florida on October 8, 1965 for having committed two acts of shoplifting in separate stores (petit larceny) for
which offenses they received suspended sentences.
The cases of the two female aliens were before us in April of 1066. We
entered an order on April 25, 1966 affirming an order entered by the
special inquiry officer on December 7, 1965 terminating the proceeding.
We held that the lack of a pardoning authority by the Executive
Branch of the State Government of Florida to pardon municipal
offenses precluded the use of the convictions as the basis for an order
of deportation. We were of the opinion that the reasoning of the courts
in Gubbels v. Hoy, 361 F.2d 952, and Costello v. Immigration and
Naturalization. Service,
376 U.S. 120, was applicable to the case of the
female.respondents.
The three cases were last before us in May of 1967. We then considered a motion filed by the General Counsel of the Immigration and
Naturalization Service to remand the proceedings on the basis that
there was additional evidence with regard to the availability of a
pardon'. for anyone convicted of a municipal offense. The cases are
again before us on certification pursuant to our order of remand entered on May 11, 1967.
There are two issues presented by the three cases. The primary issue
is whether the absence of a pardon authority precludes deportability
under section 241(a) (4), Immigration and Nationality Act. The other
is whether a conviction for violation of a mimicipal ordinance which
is prosecuted as such and not as a violation of a state or federal statute
is the conviction of a. "crime" within the purview of section 241(a) (4)
of the Act.
The special inquiry officer concludes with regard to the primary
issue that one convicted of a violation of a municipal ordinance in the
State of Florida does not have the positive right or privilege to apply
for and have an application. for pardon considered, and therefore, is
denied a right provided by section 241(b) (1) of the Immigration and
Nationality Act. The Service takes the position that the courts in
Gubbels v. Hoy and Costello (supra) were concerned with an absence
of authority to make judicial recommendations against deportation as
provided by section 241(b) (2) of the Act, whereas the instant cases
involve the absence of a pardoning authority by the Executive Branch
of the State Government of Florida pursuant to the provisions of
I To be granted by the Rxeentive Branch of the State Government of Florida.
751
section 241 (b) (1). A fortiori, there is no 'basis for reading section
241(b) (1) together with section 241 ( a) (4) because subsections ( b) (1)
and (b) (2) refer to separate and distinct jurisdictional authorities,
namely, the judiciary as opposed to the executive. Furthermore, the
Service argues that since there is evidence that a pardon has in fact
been issued by the supreme pardoning authority for the State of Florida in another case involving a conviction in a municipal court for
the same offense involved in the three cases before us, a pardon is not
precluded under the laws of Florida.
Section 241(a) (4) makes deportable an alien who has been convicted
of two crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of whether the convictions
were in a single trial. Section 241(b) of the Act makes the provisions
of subsection (a) (4) with respect to deportation of an alien convicted
of crimes not applicable (1) in the case of any alien who has subsequent to such a 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, or (2) if the court sentencing such alien for such
crimes shall make, at the time of first imposing judgment or passing
sentence, or within 30 days thereafter, a recommendation that such
alien not be deported.
Section 12, Article 4, of the Florida Constitution establishes a
Pardon Board to issue pardons to persons convicted of crimes. The
Board consists of the governor and other members of the cabinet. A
pardon issued by such Board is deemed to be within the scope of the
language of section 241(b) (1) of the Immigration and Nationality
Act_2 A pardon by the mayor of a city for violation of a city ordinance
is an effective pardon when that person constitutes the only pardoning
authority.a
The Attorney General of the State of Florida in his communication
of January 25, 1968 takes the position that the Pardon Board of the
State of Florida has no jurisdiction to issue a pardon in the instant
cases because under Florida law ♦ the municipal offenses committed
by the respondents are not crimes. He further stated that the pardon
issued in a. prior case was "an act of executive courtesy" but that such a
pardon "is legally meaningless." There is no authority under Florida
law for the mayors of the municipalities involved to issue executive
pardons.
2 Matter of 13—. T L & N. Dee. 476.
'matter of 0-1?--, 8 I. & N. Dee. 59.
Wright v. Mard. 83 Fla. 201, 91 S. 87, City of Miami v. Gilbert (F1a. App.),
102 8.2d 818.
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11110E101 irec..L
. tv.u.u. TF10110
It is true that for the purpose of determining whether there has in
fact been a conviction of a "crime" within the meaning of section
241(a) (4) of the Act it has been held that the interpretation of the
misconduct by the particular state or jurisdiction involved with regard
to whether it is considered a crime under their laws does not control in
immigration proceedings!' Here, however, the jurisdictional interpretation affects a right granted an alien by Congress, namely, to avoid
deportation on a criminal charge by the grant of a pardon by "the
Governor of any of the several States." The Supreme Court has said
that "the qualifying provisions of subsection (b) (of section 241) are
an important part of the legislative scheme expressed in (section 241)
(a) (4)." The Supreme Court made no distinction in. the qualifying
provisions of subsection (b) of section 241 in the above quotation as
does the Service in their argument that there is no .reason for reading
section 241(b) (1) together with 211(a) (4) because subsections (b) (1)
and (b) (2) do not refer to the same jurisdictional authority.
Adopting a construction of the term "crime" as used in section 241
(a) (4) which would "completely nullify a procedure so intrinsic a
part of the legislative scheme" 6 as is provided by section 241(b) (1)
would trench on a right granted by Congress and is not required by
the narrowest of several possible interpretations of the statutes here
under consideration. Ambiguities in deportation statutes should be
resolved in favor of the alien? We affirm the decisions of the special
inquiry officers and their orders terminating the proceedings.
ORDER:. It is directed that the orders terminating the proceedings
herein entered by the special inquiry officers on January 10, 1967 and
February RS, 1967 be and the same are hereby affirmed.
FtoresRodriguez, 237 F.2d 405, 409 (43.A. 2, 1956) ; Babourie v. Deperdy,
269
F.2d 621 (QA. 2, 1959) ; Wyngaard v. Kennedy, 295 F.24 184 (0.A.D.O., 1961).
° Costello v. immigration and Naturaulation Service, 370 u.s. 120, 127, Li. L.
Ed.2d 559, 563 (1954).
Rid, 376 17.S. 124
11 L. Ed.2d 564.
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