A-5829477
Decided by Central Office March 21, 1949 Decided by Board November 18, 1949
Pardon — Conditional pardon in Vermont — Effect of such pardon as to conviction of crimes constituting basis for deportation.
Where a conditional pardon was granted by the Governor of Vermont with respect to convictions for crimes which constitute the basis for deportation, and such a pardon is found not to be a complete discharge but merely a conditional discharge, the alien is deemed deportable on the criminal grounds, since he has not received a pardon as contemplated in section 19 of the Immigration Act of 1917.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once after entry for crime, to wit: Burglary and burglary.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a native and citizen of Canada, who last entered the United States about the year 1910 at St. Albans, Vt. On April 26, 1921, he was convicted at Rutland, Vt., of the crime of burglary in the nighttime, committed on April 21, 1921, and was sentenced to a term of not less than 2 or more than 3 years imprisonment. Sentence was suspended and he was placed in the hands of the State probation officer. However, on July 5, 1922, it was found that he had violated the terms of his probation and he was committed to the State penitentiary on his original sentence. On November 10, 1926, he was convicted at Rutland, Vt., of burglary committed in November 6, 1926, and was sentenced to the State prison for a term of not less than 2 or more than 3 years. On February 25, 1923 and March 28, 1929, he was granted, respectively, conditional pardons covering each of the offenses. Both pardons are worded similarly, and the first one will be quoted for ready reference:
STATE OF VERMONT
EXECUTIVE DEPARTMENT
Whereas, you H---- B---- of Rutland, in the County of Rutland, and State of Vermont, by consideration of Rutland City Court, on the 26th day of April A.D. 1921, were duly convicted of the crime of burglary and were then and there in and by said court sentenced to be confined at hard labor in the State prison at Windsor, in the County of Windsor, for a term of not more than 3 years and not less than 2 years to pay to the treasurer of the State of Vermont the costs of your prosecution in said court, taxed and allowed at $9.08.
Now, be it known to all whom it may concern:
That I, Redfield Proctor, Governor of the State of Vermont, by virtue of the authority vested in me by the constitution of the State, do grant unto you the said H---- B---- a pardon from the said judgment and sentence to become effective March 28, 1924, upon payment of costs, upon the following conditions, to wit:
Hereafter, you the said H---- B---- shall commit no crime punishable under the laws of this State; shall abstain from the use of intoxicating liquor; shall not associate with persons of evil character; shall lead an orderly and industrious life; shall work and reside at all times where the State probation officer or his deputy directs; and shall monthly report your residence and occupation to the State probation officer, Box No. 482, Montpelier, Vt., until excused therefrom by the Governor.
This pardon shall be in force only after you, by writing, signed by your hand, shall have agreed to keep and perform the conditions upon which it is granted, and only so long as you shall keep and perform them.
Upon consideration of the Governor for the time being (whose judgment shall be conclusive as to the fact) that you have violated and failed to perform the foregoing conditions this pardon shall become void, and you shall be apprehended and forthwith returned to your former condition of custody to serve the remainder of the term of your imprisonment, and to pay such fine and costs imposed upon you as hereinbefore recited.
Upon a warrant issued for that purpose by the Governor to any Sheriff or Constable in the State.
In witness whereof, I have hereunto set my hand and caused the great seal of this State to be hereunto affixed in the executive chamber, at Montpelier, this 25th day of February A.D. 1924.
[STATE SEAL] REDFIELD PROCTOR. By the Governor:
JOHN C. SHERBURNE.
Secretary of Civil and Military Affairs:
I, H---- B----, the person to whom the foregoing pardon is granted, do hereby accept the same, subject to the conditions therein named, and I agree to keep and perform and abide all said conditions.
H---- B----. Witness: A.L. FARMER.
Maximum sentence expires July 8, 1925. Parole period expires March 28, 1926.
NOTE. — The parole period shall be at least twice the length of the minimum sentence and in no case less than the maximum sentence.
The issue in this case is whether the conditional pardons granted the respondent are the type of pardon contemplated by section 19 of the Immigration Act of 1917. If they are not, the respondent is deportable on the charge stated in the warrant of arrest.
The presiding inspector without discussion found that the respondent had been pardoned and recommended that the warrant of arrest be canceled and the proceedings terminated. In concurring with the recommendation of the presiding inspector, the district director referred to the case of R---- E---- D----, A-4998096, in which the alien had been granted similar pardons in the State of Vermont and in which the proceedings had been terminated in a decision dated June 12, 1947, on the basis of the holdings, in Matter of B----. A-5224813, 1946 and Matter of B----, 56083/976 (1946).
Upon further consideration of Matter of D----, supra, we believe the decision of June 12, 1947, to be incorrect and readopt the view expressed in our earlier decision entered in the same case on February 14, 1947, in which we found that the conditional pardon granted to him were not of such nature as to effectuate a remission of guilt and could not, therefore, be considered as vitiating the criminal offenses of which he had been convicted and sentenced, and upon which the deportation proceeding was predicated. We repeat the rationale of that earlier decision.
The power invested in the Governor of the State of Vermont to grant pardons is contained in chapter II, section 20 of the constitution of the State of Vermont. Reference to the granting of pardons is likewise set forth in section 8888 inclusive of chapter 356, public laws of Vermont. The first three sections relate to method of application for persons and notice of hearing; the calling of justices to advise the Governor; and notice of hearing and decision.
Section 8888 entitled conditional pardon; breach provides:
The Governor in his discretion may grant a pardon for offenses against the State upon such conditions as he judges proper. Until a person to whom such conditional pardon is granted is excused from the performance of the conditions thereof, the Governor shall have all the authority, rights, and powers over and in relation to such person which he would have if he were surety in the case upon the recognizance of such person before conviction, and he shall be the sole and exclusive judge as to whether the conditions of such pardon have been violated. If, in the judgment of the Governor, such conditions have been violated, he may cause such person to be apprehended and returned until his former sentence may be complied with.
With reference to the pardon powers of the Governor, a judicial advisory opinion was requested as a result of which their opinion entitled In re Conditional Discharge of Convicts was published in 73 Vermont 414, 51 Atl. 10 (May 29, 1901). The opinion stated that the Governor has power to issue pardons which may be absolute or conditional pardon, which is not a remission of guilt as is a full pardon. It has been held judicially in the State of Vermont that a conditional pardon is of the same nature as a parole and has for its object the reformation of the convict ( In re Parker, 107 Vt. 463, 181 Atl. 106; In re Gordon, 105 Vt. 277, 165 Atl. 195; In re Hall, 100 Vt. 197, 136 Atl. 2.) Thus, it has been held that the time spent outside of prison as a result of a conditional pardon shall not be treated as time served as a result of the sentence In re McKenna, 79 Vt. 34, 64 Atl. 77 (May 21, 1906); In re Joseph De Palo, 101 Vt. 510 (Feb. 6, 1929).
By his acceptance of the conditional pardon the convict voluntarily submits himself to the conditions stated therein and is bound by them ( In re Conditional Discharge of Convicts, supra; In re Gordon, supra). He is likewise bound by the provisions of the statute under which the executive elemency was extended to him. In the eyes of the law, the conditionally pardoned convict is looked upon as being constantly in the custody of the Governor, who is regarded as his jailer and has him always upon a string that he may pull at his pleasure ( In re Joseph De Palo, supra, Matter of George Parquette, 112 Vt. 441 (July 15, 1942).
With reference to the notations contained in the conditional pardon as to the expiration date of the maximum sentence, the term of parole, and the notation made by the secretary of civil and military affairs as to the absence of any violation of the conditional pardon, the court ruled that such information is not part of the conditional pardon and appears for purposes of memoranda ( In re Joseph De Palo, supra).
On the basis of the statutes and the interpretations thereof by the courts of the State of Vermont, it must be concluded that the conditional pardons granted to this respondent are not of such nature as to effectuate a remission of guilt and cannot, therefore, be considered as vitiating the criminal offenses of which the respondent has been convicted and sentenced and upon which deportation is predicated.
As supporting this conclusion we will also repeat the pertinent portion of the opinion of the attorney general of the State of Vermont dated May 8, 1947, quoted in our order of June 12, 1947, which we erroneously stated as contrary to the view of the Board as shown in the decisions in Matter of B---- and Matter of B----, supra. In his opinion that official stated:
In my opinion, conditional pardons granted pursuant to this statute do not constitute a remission of guilt and all the disabilities attending a conviction remain. Such conditional pardons are determined to be of the same nature as a parole, having for their object the reformation of the convict.
The decisions in Matter of B---- and Matter of B----, supra, were not concerned with the issue present in the D---- or the instant case. The pardons in these cases were granted by the Governor of Ohio on condition that the persons involved conduct themselves properly thereafter. The pardons having been granted on a condition subsequent which might never occur, it was held that they were valid pardons and should be regarded as removing the ground of deportability resulting from the crimes. In Vermont, as has been shown, conditional pardons are in the nature of and hardly more than paroles and thus not of the type contemplated by section 19 of the Immigration Act of 1917.
It is believed and, therefore, found that the respondent was not granted a pardon within the meaning of section 19 of the Immigration Act of 1917, and consequently is subject to deportation on the warrant charge. Although we have found that the conditional pardon which the respondent received was not of the type contemplated by section 19 of the Immigration Act of 1917, the matter is not entirely free from difficulty since the language of the pardon, taken alone, is somewhat similar to those which have been held as removing grounds of deportation based on criminal charges. The case should, therefore, be certified to the Board of Immigration Appeals for final decision.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent last entered the United States about 1910, at St. Albans, Vt.;
(3) That the respondent was convicted of burglary at Rutland, Vt., committed April 25, 1921;
(4) That for this offense the respondent was on April 26, 1921, sentenced to State prison for not less than 2 years nor more than 3 years, which sentence was suspended and he was placed on probation;
(5) That at a session of city court held at Rutland, Vt., on July 5, 1922, respondent was adjudged to have violated the conditions of probation in connection with his conviction of burglary on April 26, 1921, and was ordered committed to State prison on the original sentence;
(6) That the respondent was convicted of burglary at Rutland, Vt., committed November 6, 1926;
(7) That for this offense the respondent was on November 10, 1926, sentenced to serve not less than 2 years nor more than 3 years in the State prison.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude, to wit: Burglary and burglary.Other Factors: In addition to the convictions discussed in the foregoing the record shows that from 1937 to 1947, the respondent has been arrested 16 times mostly for intoxication or drunkenness. His only other serious offense was breaking jail in 1947 while serving a sentence for intoxication for which he was sentenced to imprisonment for a term of a year and a day.
The respondent is a widower. He has one son who resides with his mother in this country. He apparently has not contributed much to their support but states that he intends to cut out his drinking and to do more in that respect.
In view of the respondent's record in this country his case is not one which is deserving of discretionary relief. However, the case will be certified to the Board for final decision for the reason previously stated.
Recommendation: It is recommended that the alien be deported to Canada at Government expense on the charge stated in the warrant of arrest. It is further recommended, That pursuant to 8 C.F.R. of 90.3 (b), the case be certified to the Board of Immigration Appeals for final decision.
So ordered.
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated March 21, 1949, directing that respondent be deported to Canada. Respondent, a native and citizen of Canada, last entered the United States about 1910 at St. Albans, Vt.; there is no record of this entry. Respondent was convicted on a plea of guilty of burglary on April 26, 1921 in Rutland County, Vt.; he was sentenced to serve 2 or 3 three years in the State prison, but the sentence was suspended and parole granted. On July 5, 1922, respondent was found to have violated the conditions of his probation and ordered committed to the State prison; he served 2 years of the sentence. In September 1926, respondent was again convicted of robbery on a plea of guilty and sentenced to serve 2 to 3 years in the State prison. Respondent was granted a conditional pardon for the first offense by the Governor of Vermont on February 25, 1924; the pardon expired on March 28, 1928, without revocation. A similar pardon was granted by the Governor for the second crime on March 28, 1929; this pardon was also not revoked during the pardon period which expired on June 11, 1933.
The question presented is whether a conditional pardon in Vermont wipes away the crime committed and the conviction therefor, so that the convicted alien comes within the contemplation of the term "pardoned" as set out in section 19 (a) of the act of 1917. The pertinent statute which authorizes the granting of conditional pardons by the governor reads as follows:
SEC. 8888 Conditional Pardon — Breach.
The Governor in his discretion may grant a pardon for offenses against the State upon such condition as he judges proper. Until a person to whom such conditional pardon is granted is excused from performance of the conditions thereof, the Governor shall have all the authority, rights, and powers over and in relation to such person which he would have if he were surety in the case upon the recognizance of such person before conviction, and he shall be the sole and exclusive judge as to whether the conditions of such pardon have been violated, he may cause such person to be apprehended and returned until his former sentence may be complied with. (T. 38, Imprisonment and pardons, ch. 356, Pardons and discharges, public laws of Vermont, 1933.)
The two pardons were granted by the Governor on condition that respondent "shall commit no crime punishable under the laws of this State; shall abstain from the possession and use of intoxicating liquor; shall not associate with persons of evil character; shall lead an orderly and industrious life; shall work and reside at all time where the State probation officer directs; and shall report your residence and occupation to the State probation officer." Such a pardon, once delivered and accepted, can be revoked only upon violation of the conditions enumerated therein ( Matter of Parquette, 112 Vt. 441, 27 A. 2d 129, 1942).
The effect of a conditional pardon has not been directly ruled upon by the Vermont courts up to the present time. The Supreme Court of Vermont rendered an advisory opinion on the construction of the statutory and constitutional pardon powers of the Governor in 1901. In In re Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. 10, the court held that upon nonperformance of stipulated conditions, a pardon becomes void and the status of the prisoner is the same as at the time his pardon was granted and thereafter he will continue to serve the sentence originally imposed. In Matter of Parquette, supra, that court stated: "In the eye of the law, the conditionally pardoned convict is looked upon as being constantly in the custody of the governor, who is regarded as his jailer and has `him always upon a string that (he) may pull at pleasure.' In re De Palo, 101 Vt. 510, 144 Atl. 678, 1929. * * * The authority of a surety on recognizance with which the statute invests the Governor was intended, and is, to be exercised only in connection with the power to order the arrest and remand to custody, when, in the judgment of the Governor, a condition of the pardon has been violated."
Since upon condition broken, the sentence, which has hung in its entirety over the liberty of the paroled convict, is then reimposed and the prisoner is made to serve his sentence as if no pardon had been granted, it is concluded that the conviction is wiped out only upon a complete discharge by the Governor, as compared with a mere conditional discharge in the instant case (see also, Attorney General's Survey of Release Methods, 1939). Therefore, in view of all the foregoing facts, we feel that the warrant charge is sustained and the appeal must be dismised.
Order: It is hereby ordered that the appeal be dismissed.