A-5695142
Decided by Board December 11, 1956
Pardon — Effect on deportation charge under section 241 (a) (12), Immigration and Nationality Act, where record contains no evidence independent of the arrest, conviction, and pardon records establishing that respondent had been engaged in conduct bringing him within that section.
Respondent denied under oath, during deportation hearing, having had any connection with prostitution. He subsequently obtained full and unconditional pardons of the offenses which serve as the basis for the deportation charge under section 241 (a) (12) of the act. The records of arrests, convictions, and pardons are the only evidence of conduct bringing respondent within section 241 (a) (12). Since a pardon, if granted after conviction, "removes the penalities and disabilities" attached to the conviction, the evidence of record is insufficient to sustain the deportation charge under section 241 (a) (12).
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of 2 crimes involving moral turpitude.
Act of 1952 — Section 241 (a) (12) ( 8 U.S.C. 1251 (a) (12)) — Subsequent to entry became a member of class of aliens who attempt to procure prostitutes, etc.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer August 3, 1956, directing his deportation under section 241 (a) (12) of the Immigration and Nationality Act of 1952 ( 8 U.S.C. 1251 (a) (12)). Counsel on appeal urges that the evidence of record, as a matter of law, does not support a finding of deportability.
The record relates to a native and citizen of Italy, male, unmarried, 40 years of age, who was admitted for permanent residence at the port of New York on March 20, 1920. The warrant of arrest, issued on May 26, 1953, charges deportability under both sections 241 (a) (4) and 241 (a) (12) of the Immigration and Nationality Act. Both charges stem from respondent's convictions in the criminal District Court for the Parish of Orleans, Louisiana, and the Municipal Court of the City of New Orleans, Louisiana, during June of 1942 and 1944, respectively, for the commission of acts relating to prostitution.
This Board originally considered the case on November 19, 1954. We held that respondent was not deportable under section 241 (a) (4) of the Immigration and Nationality Act for the reason that of the 3 convictions, two are convictions of municipal ordinances and cannot be considered convictions of crimes ( Matter of C----, A-5536201, 2 IN Dec. 367). We held respondent deportable solely on the charge laid under section 241 (a) (12), supra.
Counsel thereafter submitted a motion under date of April 6, 1956, requesting reconsideration of our order directing deportation. Supporting the motion was evidence of the fact that respondent had been granted full and unconditional pardons of the offenses which serve as the basis for the charge laid under section 241 (a) (12), supra. The Board's order of April 24, 1956, withdrew the outstanding order and warrant of deportation and remanded the case to the special inquiry officer for a reopening of the proceedings to permit the introduction of new material evidence, to wit: the aforementioned pardons.
A reopened hearing was accorded respondent at New Orleans, Louisiana, on May 10, 1956. Copies of the pardons were introduced in evidence. Notwithstanding the fact that the convictions may no longer serve as evidence of deportability, the special inquiry officer concluded that "the respondent's pleas to the criminal charges constitute reasonable and substantial evidence of the conduct prescribed by section 241 (a) (12) of the Immigration and Nationality Act." The special inquiry officer sustained the charge and ordered deportation.
The substance of the charge here under consideration is that the respondent "by reason of any conduct, behavior or activity at any time after entry became a member of any of the (following) classes" * * * (a) "aliens who directly or indirectly procure or attempt to procure," (b) "or who have procured or attempted to procure or to import," (c) "or for any other immoral purpose" (section 212 (a) (12)). It is well established that a pardon does not preclude deportation when the evidence contained in the record, exclusive of the record of conviction, is sufficient to sustain the deportation order ( United States ex rel. DiTomasso v. Martineau, 97 F. (2d) 503 (C.C.A. 2, 1938)). Counsel urges that the only evidence of record supporting the charge here under consideration is that contained in the record of conviction.
Respondent testified during the hearing of August 11, 1953, that he was not represented by counsel on the occasion of his 3 convictions. He testified that he had nothing to do with procuring the women involved and that all he received was taxi fare for the transportation of the parties concerned. He also testified that he was advised by a friend to plead guilty and pay the fine. We said in our opinion of November 19, 1954, "The respondent's denial under oath of his connections with prostitution is not sufficient to overcome the persuasive import of these convictions." The special inquiry officer concedes, "It is true that the present record contains no evidence independent of the arrest, conviction and pardon records establishing that the respondent had been engaged in conduct bringing him within section 241 (a) (12)."
"A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and 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. If (the pardon is) granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity" ( Ex parte Garland, 71 U.S. 333, 380, 381). We note that when the instant case was before the Court of Appeals for the Fifth Circuit the court denied the application for a writ of habeas corpus on the ground that the records of conviction amounted to substantial evidence to support the administrative finding that between the years 1942 and 1944 the respondent became a member of one of the classes specified in section 212 (a) (12) of the Immigration and Nationality Act ( Spadaro v. Nabors, 229 F. (2d) 190, 192 (1956)).
We conclude, as a matter of law, on the basis of the authority cited above and the record before us that the evidence, exclusive of the record of conviction, is insufficient to sustain the deportation order. Cf. United States ex rel. DiTomasso v. Martineau, supra; Rasmussen v. Robinson, 163 F. (2d) 732 (C.C.A. 3, 1947); Taylor v. United States, 231 F. (2d) 856 (C.C.A. 5, 1956). The evidence of record in our judgment, exclusive of that contained in the record of conviction, does not amount to reasonable, substantial, and probative evidence as required under section 242 (b) (4) ( 8 U.S.C. 1252). The appeal will be sustained and an appropriate order entered.
Order: It is directed that the appeal be and the same is hereby sustained; the proceedings under the warrant of arrest dated May 26, 1953, are hereby terminated.