NOLAN

                                                       Interim Decision #3043




                            MATTER OF NOLAN

                         In. Deportation Proceedings

                                   A-35298972

                    Decided by Board January 26, 1988

(1) The pardon issued automatically to the respondent as a first felony offender pursuant to Article 4, section 5(EX1) of the Constitution of the State of Louisiana of
  1974 upon completion of his sentence does not satisfy the requirements of section
  241(bXl) of the Immigration and Nationality Act, 

(bXl) (1982), and
  therefore does not excuse deportability under section 241(aX4) of the Act, because
  the pardon is neither full nor unconditional and because it was not issued by the
  Governor or an otherwise constitutionally-recognized executive body of Louisiana.
(2) The availability or unavailability of a pardon under state or federal law, or the
  existence or nonexistence` of a qualifying pardoning authority, is not determinative of whether an offense constitutes a "crime" within the ambit of section
   241(aX4) of the Act. Matter of Cevallos, 

 (BIA 1968), overruled.
CHARGE:
 Order: Act of 1952—Sec. 241(aX4) [

(aX0—Crime involving moral
                     turpitude
ON BEHALF OF RESPONDENT:                          ON BEHALF OF SERVICE:
 Nelson Smith, Esquire                             George W. Katz
 725 First City National Bank Building             General Attorney
 El Paso, Texas 79901

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members



  This case is before its on motion of the respondent to reopen in
order to terminate the proceedings based on the existence of new
evidence not available at the time of the original hearing. The
motion will be denied.
  The respondent, a native and citizen of the Republic of Ireland,
entered the United States on January 5, 1978, as an immigrant.
The record reflects that on November 6, 1980, he was convicted
upon a plea of guilty in the Eighteenth Judicial District Court of
the Parish of Iberville, Louisiana, of the crime of attempted simple
burglary in violation of the laws of the State of Louisiana. For this
crime, he was sentenced to 3 years' confinement in the Louisiana

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Interim Decision #3043

Department of Corrections. The court suspended this sentence and
placed the respondent on probation for a period of 4 years.
   On September 22, 1981, an Order to Show Cause and Notice of
Hearing (Form 1-221) was issued charging the respondent with deportability under section 241(a)(4) of the Immigration and Nationality Act, 

(a)(4) (1982), as an alien who was convicted
of a crime involving moral turpitude within 5 years of entry and
sentenced to confinement therefor in a prison or corrective institution for a year or more. At the deportation hearing, the respondent, through counsel, admitted the allegations set forth in the
Order to Show Cause but denied deportability. Based on the conviction documents and other evidence introduced by the Immigration
and Naturalization Service, the immigration judge determined that
there was clear, unequivocal, and convincing evidence to establish
that the respondent was deportable as charged under section
241(a)(4) of the Act. Woodby v. INS, 

 (1966); 

(a) (1987). The respondent appealed and this • Board dismissed the appeal on July 20, 1984.
   The respondent now seeks to reopen the prior proceedings in
light of new evidence which was not available and could not have
been discovered or presented at the former hearing. He alleges that
on November 6, 1984, he received an automatic and full pardon of
his criminal conviction. He claims that under the provisions of the
Louisiana State constitution, a first offender never previously convicted of a felony is pardoned automatically upon completion of his
sentence without a recommendation from the Board of Pardons
and without action by the Governor. Having received the only
pardon available to first offenders in the State of Louisiana, he
argues that his pardon comes under the auspices of section 241(b)(1)
of the Act, 

(b)(1) (1982), and as such, the deportation
proceedings against him should be terminated In support of the
motion, the respondent has submitted a letter dated January 15,
1985, from the Vice Chairman of the Board of Pardons of the State
of Louisiana and a statement of verification dated December 27,
1984, from the Acting Probation and Parole Director of the Louisiana Department of Public Safety and Corrections, both of which
confirm that the respondent was automatically pardoned of his
conviction effective November 6, 1984.
  In order to warrant reopening, an alien must make a prima facie
showing of eligibility for the relief requested. INS v. Wang, 

 (1981); Matter of Martinez Rornera, 18 MN Dec 75 (BIA
                                       -



1981), affa Martinez Romero v. INS, 

 (9th Cir. 1982);
Matter of Sipus, 

 (BIA 1972); Matter of Lam, 

 (BIA 1972). The question before us is whether the re-
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                                                       Interim Decision # 3043

spondent has shown that the automatic pardon granted him under
Louisiana State law satisfies the pardon requirements of section
241(b)(1) of the Act so as to exempt his conviction from serving as a
basis of deportability under section 241(aX4) of the Act.
   By definition, a pardon is an act of grace and mercy by which an.
offender is released from all the legal consequences flowing from
his criminal conviction. Knote v. United States, 

(1877); see also Ex parte A. H. Garland, 

(1867); United States v. Wilson, 

 (1833). Generally speaking, a pardon may be absolute or conditional in nature.
United States v. 

 Matter of S , 

, 590
                                                       -


(BIA, A.G. 1946). A conditional pardon is one to which a. condition,
either precedent or subsequent, is attached, the performance of
which condition is necessary to the validity of the pardon. Matter
of C , 

, 633 (BIA 1954), and the cases cited therein;
    -


Matter of S-, supra. When a pardon is full, it "blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." Ex parte A. H. Gar                  -

.
  The immigration laws recognize the effectiveness of pardons in
cases regarding deportation for a crime or crimes involving moral
turpitude, but only under certain prescribed circumstances. Section
241(b) of the Act specifies:
 The provisions of subsection (a)(4) respecting the deportation of an alien convicted
 of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such 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. . . .
  Thus, not just any pardon will suffice for the purposes of section
241(b)(1) of the Act. First, the pardon in question must be "full and
unconditional" in nature. It must obliterate any future legal consequences flowing from the underlying adjudication of guilt and must
not be dependent upon the fulfillment of any condition. See Matter
of Tajer, 

 (BIA 1974); Matter of L-, 

, 356 031A 1954); Matter of T-, 

, 216 (BIA 1954);
Matter of C-, supra, at 633-34; Matter of 5—, 

, 16 (C.O.
1952; BIA 1953). Second, the pardon must be executively, as distinguished from legislatively, conferred and be granted by either the
President of the United States or the Governor of a state. See
Matter of Tajer, supra, at 126; Matter of IC-, 

(BIA 1961); Matter of D , 7 I&N Dec_ 476, 477 (MA 1957); Matter of
                            -


R-, 

, 445-46 (BIA 1954); Matter of R-, 5 I&N. Dec.
612, 618-19 (BIA 1954). Although Congress has expressly manifested its intent to exempt from deportation those aliens convicted of a
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Interim Decision #3043

crime of moral turpitude who have received a presidential or gubernatorial pardon, this Board has recognized the fact that in some
instances, the supreme pardoning power may rest with an executive or executive body other than the President of the United
States or the Governor of a state. Matter of Tajer, supra (Georgia
State constitution vests power to issue executive pardons in State
Board of Pardons and Paroles); Matter of K-, supra (unconditional
pardon granted by United States High Commissioner for Germany); Matter of C-R-, 

 (BIA 1958) (unconditional
pardon granted by Mayor of Scottsbluff, Nebraska, in the case of a
conviction under a city ordinance); Matter of D-, supra (unconditional pardon granted by Georgia State Board of Pardons and Paroles); Matter of 

 (unconditional pardon granted by Gover-
                   -


nor of Hawaii before the Territory of Hawaii became a state).
  The above restrictions were added by the Immigration and Nationality Act of 1952. Prior to that time, the immigration laws imposed no limitations on the type of pardon which would be sufficient to render an alien immune from deportation under a section
241(a)(4) charge. All that was required was for an alien to be "pardoned" of his conviction of a crime involving moral turpitude. See
Act of Feb. 5, 1917, ch. 29, § 19, 29 Stet. 874, 889 90 (current ver-
                                                      -


sion at 

(b)(1) (1982)). Under previous law, recognition
was granted to full pardons which were legislatively granted by operation of law and conditioned upon completion of the sentence imposed for the underlying conviction. Perkins v. United States, 

 (3d Cir. 1938); Mercer v. Lence, 

 (10th Cir.), cert.
denied 

 (1938); Matter of M-, 

, 8'72 (BIA
1947). See generally Senate Comm. on the Judiciary, The Immigration and Naturalization Systems of the United States,       S. Rep. No.
1515, 81st Cong., 2d Seas. 637 (1950). Pursuant to the provisions of
the 1917 Act, this Board also accepted as valid pardons which were
granted on the condition that the persons involved conduct themselves properly thereafter. See Matter of B-, 

, 554
       BIA 1949). With the passage of the 1952 Act, however, the
benefits of section 241(b)(1) were restricted to those aliens who have
obtained full and unconditional pardons issued by the President or
a Governor. In so providing, Congress unequivocally removed from
the benefits of section 241(b)(1) any pardon not satisfying those requirements.
  In the case before us, the respondent asserts that the automatic
pardon he received as a first offender pursuant to the provisions of
Louisiana's State constitution satisfies the pardon requirements of
section 241(b)(1) of the Act. Article 4, section 5(E)(1) of the Constitution of the State of Louisiana of 1974 provides:
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                                                       Interim Decision #3043

  (1) The governor may grant reprieves to persons convicted of offenses against the
  state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and
  forfeitures imposed for such offenses. However, 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.'
   By its terms, this constitutional provision creates two separate
and distinct categories of pardons: those granted by the Governor
and those awarded automatically to first offenders by operation of
law upon completion of the sentences imposed. In State v. Adams,

 (La. 1978), the Supreme Court of Louisiana determined that different legal consequences flow from each type of
pardon. The court held that a full pardon granted by the Governor
restores the status of innocence to the convicted person. Therefore,
such a pardon precludes the use of the pardoned offense to later
enhance punishment should a subsequent offense be committed. 

. On the other hand, in the case of automatic pardons, the
court found that the delegates to the state constitutional convention did not intend for the mere completion of one's sentence to be
the only prerequisite for the status of innocence to be restored to
the convicted person. Consequently, the court ruled that the automatic pardon provision of the state constitution did not bar consideration of a first felony conviction in later adjudicating a person as
a habitual offender under state law upon a subsequent conviction.

; see also State v. Lewis, 

 (La. 1978); State v.
Walker, 

 (La. App. 3d Cir. 1983); see also State v. Wiggins, 

 (La. 1983) (automatic pardon does not preclude
state from regulating circumstances under which first felony offender could possess a firearm).
   After reviewing both the language of the constitutional provision
regarding the automatic pardon and the interpretation given it by
the Supreme Court of Louisiana, we conclude that as a matter of
law, the automatic pardon received by the respondent does not satisfy the requirements of section 241(b)(1) of the Act. We first find
that the respondent's pardon is not "full" in nature in that it does
not restore the respondent to his former status of innocence. The
highest judicial authority in the State of Louisiana has ruled that,
although automatically pardoned, a first offender's conviction survives for the purpose of sentencing should the offender commit a
subsequent crime- State v. 

 Second, the respondent's
pardon was specifically conditioned upon his completion of the senThe Board of Pardons is created under Article 4, section 5(EX2) of the Constitution of the State of Louisiana of 1974.
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Interim Decision *3043

tence imposed by the courts for his conviction. La. Const. Art. 4,
§ 5(E)(1). The pardon could not be obtained absent the fulfillment of
this condition precedent. Thus, the pardon was not "unconditional"
as is mandated by section 241(b)(1) of the Act. Third, the pardon
obtained by the respondent is not an executive pardon for purposes
of the immigration laws. The automatic first offender pardon was
neither granted by the Governor of Louisiana nor issued by an otherwise constitutionally-recognized executive body. Rather, the respondent's pardon was granted automatically by operation of law
upon the expiration of his period of probation. This type of pardon,
although provided for under a state constitution rather than by
statute, is akin to the legislative pardon which Congress clearly rejected when it enacted the current pardon provisions of the Act in
1952. Matter of Tajer, supra; Matter of K-, supra; Matter of R-,
supra; Matter of supra.
   In the alternative, the respondent urges that the proceedings
against him be terminated 'because, under Louisiana law, no
pardon is available to him as a. first felony offender that would satisfy the requirements of the immigration laws. Therefore, he
argues, the crime of which he was convicted should not be considered a "crime" for the purpube of depurtability under section
241(a)(4) of the Act. In advancing this argument, the respondent
relies on Matter of Cevallos, 

 (BIA 1968), in which
this Board held that a conviction for an offense for which there is
no pardoning authority within the purview of section 241(b)(1) of
the Act is not a conviction of a "crime" within the meaning of section 241(a)(4) of the Act.
   At the outset, we note that the holding in Cevallos has never
been followed or subsequently cited with approval either by this
Board or by any court, and we believe with good reason. Cevallos
stands for the proposition that if a pardon is unavailable because of
the absence of a pardoning authority that would be recognized
under section 241(b)(1) of the Act, then the offense underlying the
conviction does not constitute a "crime" for the purpose of section
241(a)(4) deportability. This Board is not persuaded by this logic.
  Whether a state opts to authorize the granting of a pardon, and
by what mechanism, for which offenses, and under what circumstances, are matters resting within the sovereign decision-making
powers of that state. Indeed, it is not inconceivable that a state
may choose to preclude, by any mechanism, the granting of pardons in cases involving aggravated criminal offenses. Applying the
reasoning employed in Cevallos, such aggravated offenses would
cease to be crimes for the purpose of section 241(a)(4) deportability
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because a pardon from a qualifying pardoning authority would be
unavailable. We do not believe that Congress intended this result.
   In our view, the availability or unavailability of a pardon under
state or federal law, or the existence or nonexistence of a qualifying pardoning authority, has no bearing on the separate question of
whether an offense constitutes a "crime" for the purpose of deportability under section 241(a)(4) of the Act. Only after a determination has been made that a crime has been committed subjecting an
alien to deportability under section 241(aX4) of the Act are the
pardon provisions of section 241(b)(1) of the Act triggered. If a state
has authorized the granting of a pardon for such a crime, the inquiry then is directed to whether the pardon satisfies the requirements of section 241(b)(1) of the Act, i.e., the pardon is full, uncon-
        ,


ditional, and executive in nature, having been issued by the President of the United States or the Governor of a state. If the pardon
fulfills all of the statutory requirements of the Act, then there
ceases to be a crime on which to base deportability under section
241(aX4) of the Act.
   Based on the foregoing discussion, we now overrule our holding
in Matter of Cevallos, supra. The respondent's argument that the
proceedings against him should be terminated for lack of having
been convicted of a "crime" is accordingly rejected.
   As the respondent has failed to demonstrate that the automatic
first offender pardon he received satisfies the pardon requirements
of section 241(b)(1) of the Act, he is ineligible as a matter of law for
the relief he seeks. Therefore, no purpose would be served by reopening the proceedings. 2 Accordingly, the motion will be denied.
   ORDER: The motion is denied.




  2 The Service summarily references in its brief the subsidiary question of whether

the Louisiana State constitution's automatic pardon provision constitutes a state
counterpart to the federal first offender statute. We note that the respondent has
neither raised this issue nor responded to it irk his brief. In light of our decision to
deny the motion on the grounds set forth above, we find it unnecessary to address
this issue.

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