A-4399310
Decided by the Central Office February 13, 1952 Decided by the Board January 23, 1953
Restoration of civil rights — State of Washington — Equivalence of "pardon" within the meaning of section 19, Immigration Act of 1917.
A certificate of Restoration of Civil Rights issued in 1946 by the Governor of the State of Washington has the same effect as a pardon within the meaning of section 19 of the Immigration Act of 1917, so as to avert deportation on the criminal charge involved.
CHARGE:
Warrant: Act of 1917 — Convicted of crime prior to entry, to wit: Grand larceny
BEFORE THE CENTRAL OFFICE
(February 13, 1952)
Discussion: The record relates to a 60-year-old divorced male, native and citizen of Germany, who last entered the United States near Hannah, North Dakota in December 1920 or January 1921. The warrant of arrest was served on August 17, 1944.
The record discloses that respondent pleaded guilty to the crime of grand larceny, committed on or about May 23, 1919, and that he was sentenced to serve a term of imprisonment at hard labor in the State Reformatory at Monroe, Washington, for a period of not less than one year and not more than fifteen years. He was paroled on July 17, 1920, and was deported from the United States July 28, 1920, on the charges that he was convicted of a crime involving moral turpitude within 5 years after his entry into the United States and that at the time of his entry he was likely to become a public charge. He thereafter surreptitiously entered the United States in December 1920 or January 1921 and has resided continuously in this country since that time. He obtained a final discharge from parole on July 25, 1934 and on December 27, 1946, he obtained a Certificate of Restoration of Civil Rights issued by the Governor of the State of Washington.
Article 3, section 9, of the Constitution of the State of Washington reads as follows:
Pardoning Power — The pardoning power shall be vested in the Governor, under such regulations and restrictions as may be prescribed by law.
Article 3, section 11, of the Constitution provides as follows:
The Governor shall have power to remit fines and forfeitures, under such regulations as may be prescribed by law, and shall report to the legislature at its next meeting each case of reprieve, commutation, or pardon granted, and the reasons for granting the same, and also the names of all persons in whose favor remission of fines and forfeitures shall have been made, and the several amounts remitted, and the reasons for the remission.
Section 10250 of Remington's Revised Statutes of the State of Washington reads as follows:
Pardons — Restoration of Civil Rights — Whenever the Governor shall grant a pardon to a person convicted of an infamous crime, or shall grant an absolute release to any such person as provided by law, or whenever the maximum term of imprisonment for any such person was committed, is about to expire, or has expired, the Governor shall have the power, in his discretion, to restore to such person, his civil rights in the manner as in this act provided. L. 31, p. 72, sec. 1.
Section 10251 provides for the issuance of a certificate in pursuance of the preceding section and for its form and execution.
Section 10249-7 of Remington's Revised Statutes of the State of Washington reads as follows:
It shall be the duty of the Board of Prison, Terms, and Paroles, when requested by the Governor, to pass on the representations made in support of applications for pardons or the restoration of civil rights for convicted persons and to make recommendations thereon to the Governor * * *. L. 35, p. 317, sec. 7.
Section 1212 of Remington's Revised Statutes of the State of Washington provides:
No person offered as a witness shall be excluded from giving evidence by reason of conviction of crime, but such conviction may be shown to affect his credibility: Provided, that any person who shall have been convicted of the crime of perjury shall not be a competent witness in any case, unless such conviction shall have been reversed, or unless he shall have received a pardon.
There does not appear to be any other section or sections in the Constitution of the State of Washington or the statutes of that State relating to the pardoning power of the Governor or the manner in which such power is exercised, nor is there any other provision relating to restoration of civil rights.
There was introduced in evidence as exhibit 15, a copy of a letter dated September 6, 1947, addressed to the Honorable Jack Gorrie, Assistant to the Governor, Olympia, Wash., from Edward J. Lehan, Assistant Attorney General, expressing an opinion that the effect of a final discharge restoring civil rights executed pursuant to the provisions of Remington's Revised Statutes of Washington, section 10250, was equivalent to an unconditional pardon by the Chief Executive of the State. The opinion of the Assistant Attorney General of the State of Washington seems to be based on the assumption that as an unconditional pardon under the prevailing rule in Washington does not operate to obliterate guilt of the convicted person but merely condones the offense and as an unconditional pardon and the restoration of civil rights executed by the Chief Executive of the State have the effect of unconditionally restoring all civil rights, there should be no distinction between them, as both recognize the fact of conviction and neither operates to obliterate the guilt of the convicted person. Counsel for respondent contends that in view of such decision, it must be concluded that the restoration of civil rights in the State of Washington is equivalent to a pardon and consequently the charge stated in the warrant of arrest is not sustainable. In support of his contention, he claims that the Matter of G----, 55933/494, B.I.A. 1950, Interim Decision 158 ( 4 IN Dec. 73) controls, rather than the decision in the Matter of O----, A-5877015, Atty.Gen. 1950, Interim Decision 119 ( 3 IN Dec. 209).
In the Matter of O---- it was held by the Acting Attorney General that a certificate evidencing the restoration of a criminal's civil rights issued by the Board of Pardons in the State of Nebraska was not a pardon within the meaning of section 19 of the Immigration Act of 1917 and the deportation of an alien on a criminal ground was not averted thereby. In that case, reference was made to a decision of the Attorney General in a memorandum of November 5, 1946, file 23/115492, wherein it was held that a certificate of restoration of civil rights in Illinois may not be deemed a pardon for the purpose of the immigration laws. The Assistant Attorney General then in charge of the Criminal Division in considering the interpretation to be given the Illinois statute relating to restoration of civil rights commented:
It is our opinion that this question should not be finally resolved administratively; and that unless or until a Federal court can hold that such a certificate is a pardon within the meaning of that term as used in the statute, the deportation of convicts falling within the section in question should be ordered.
In the case of the Matter of G---- relied upon by counsel for respondent, the Board of Immigration Appeals held that a document issued by the Governor of the State of Wisconsin restoring civil rights was a pardon within the meaning of the Immigration Act. However, in reaching such conclusion the Board of Immigration Appeals found that a full pardon by the Governor was required to restore civil rights in the State of Wisconsin at the time the document in question was issued by the Governor and consequently the document issued was essentially a pardon and not merely a restoration of civil rights. This is not the situation in the instant case.
In the instant case, a perusal of the provisions of the Constitution and Statutes of the State of Washington discloses that the Governor of that State had full power to either issue a pardon or a restoration of civil rights. In respect to the issuance of a pardon he was required to report such action to the Legislature at its next annual meeting. No such requirement was necessary in connection with the issuance of a certificate of restoration of civil rights. Both in the Matter of O---- and in the memorandum of the Attorney General of November 5, 1946, file 23/115492, it was held that despite the opinion of the Attorney General of the States involved that a certificate of restoration of civil rights was equivalent to a pardon under the statute of that State, the certificate of restoration of civil rights was not a pardon within the meaning of the immigration laws. Likewise, it is concluded that a restoration of civil rights in the State of Washington, as distinct from a pardon, should not be deemed a pardon within the meaning of the immigration laws. This question should not be finally resolved administratively unless or until a Federal court shall hold that a certificate of restoration in the State of Washington is a pardon within the meaning of the immigration statutes.
Furthermore, a document designated as a pardon is not effective to avert deportation if by its terms it refrains from extending to the recipient all of the benefits which accrued to the holder of a pardon. Section 1212, Remington Revised Statutes, states that a person who has been convicted of a crime of perjury is not a competent witness in any case unless such conviction has been reversed or he lawfully shall have received a pardon. At the time of the enactment of this section in 1891, there existed no statutory provision for the restoration of civil rights, section 10250 of Remington's Revised Statutes having been enacted in 1931. It may be as stated by the Assistant to the Governor of the State of Washington, that the restoration of civil rights is the equivalent of an unconditional pardon by the Chief Executive of such State and both have the effect of unconditionally restoring all civil rights and consequently the ability to testify is embraced within the general description of the civil rights. Consequently, it might be concluded that proper gubernatorial restoration of civil rights restores the ability to testify of one previously convicted of the crime of perjury. However, no judicial construction has been given in respect to the ability to testify by a person who is convicted of the crime of perjury whose conviction has not been reversed and who has obtained a restoration of civil rights only and not a pardon. It is not beyond judicial possibilities that the language of section 1212, Remington's Revised Statutes, might be very strictly construed and that only a pardon, as distinct from a restoration of civil rights, would restore the ability to testify of one previously convicted of a crime of perjury. This possibility of judicial construction was pointed out by the Assistant Attorney General of the State of Washington in a letter addressed to this Service on July 20, 1951.
In view of the foregoing, it is concluded that a restoration of civil rights is distinct and separate from a pardon in the State of Washington and that a restoration of civil rights is not a pardon within the meaning of section 19 of the Immigration Act of 1917. Consequently, the respondent was properly found to be deportable on the charge stated in the warrant of arrest. Upon consideration of the entire record, including the exceptions taken, the findings relating to deportability made by the officer conducting the hearing are hereby adopted.
An application has been made by respondent for the discretionary relief of voluntary departure, preexamination and the exercise of the 7th proviso to section 3 of the Immigration Act of 1917. While respondent has resided continuously in the United States since at least from January 1921, he is a divorced male, there being no one in the United States dependent upon him for support and his deportation would not result in any serious economic detriment to anyone in this country. Furthermore, the granting of discretionary relief of the 7th proviso and voluntary departure would be of no avail to respondent in his efforts to return to the United States, unless he is also given the discretionary relief of preexamination. He is a divorced male, native and citizen of Germany and not entitled to any preference or nonquota visa. In view of the oversubscribed quota situation relating to German natives, it is clear that a visa may not readily be granted to him (8 C.F.R. 142.2(d)). In view of his ineligibility to preexamination, it would be a futile gesture to grant him the discretionary relief of voluntary departure and exercise of the 7th proviso. Consequently, his application for discretionary relief will be denied and an order for his deportation entered.
Order: It is ordered that the application of the alien for voluntary departure, preexamination and exercise of the 7th proviso to section 3 of the Immigration Act of 1917, be denied.
It is further ordered that the alien be deported from the United States pursuant to law on the charge stated in the warrant of arrest.
(January 23, 1953)
Discussion: This is an appeal from the Assistant Commissioner's order of February 13, 1952 requiring the respondent's deportation on the ground stated above.
The alien, a 61-year-old divorced male, native and citizen of Germany, last entered the United States in 1921 or 1922. Deportation is sought on the ground that on May 28, 1919, he was convicted by a court in the State of Washington on a charge of Grand Larceny.
The sole legal issue is whether the Certificate of Restoration of Civil Rights issued to respondent in 1946 by the Governor of the State of Washington is a pardon within the meaning of section 19 of the Immigration Act of 1917.
The Assistant Commissioner is of the opinion that: (1) There should be no administrative holding that a restoration to Civil Rights in Washington is as effective to avoid deportation as is a pardon, unless or until a Federal court so holds. (2) It is further urged that effect should be given to the distinction which requires the Governor of the State of Washington to report the issuance of a pardon to the legislature but makes no such requirement in connection with the issuance of a Certificate of Restoration of Civil Rights. (3) And finally, it is pointed out that a pardon operates to make a person convicted of the crime of perjury a competent witness whereas there is some question as to whether a restoration of civil rights would have a similar effect.
The alien applied for a pardon. He was granted a Certificate of Restoration of Civil Rights. This certificate was granted in pursuance of section 10250 of Remington's Revised Statutes of the State of Washington which read as follows:
Pardons — Restoration of Civil Rights — Whenever the Governor shall grant a pardon to a person convicted of an infamous crime, or shall grant an absolute release to any such person as provided by law, or whenever the maximum term of imprisonment for any such person was committed, is about to expire, or has expired, the Governor shall have the power, in his discretion, to restore to such person, his civil rights in the manner as in this Act provided. L. 31, p. 72, sec. 1.
The Certificate of Restoration of Civil Rights granted to the respondent reads as follows:
UNITED STATES OF AMERICA State of Washington RESTORATION OF CIVIL RIGHTS OFFICE OF THE GOVERNOR Olympia
TO THE PEOPLE OF THE STATE OF WASHINGTON, Greeting:
I, Mon C. Wallgren, Governor of the State of Washington, by virtue of the power vested in my office by the constitution and laws of the State of Washington, do by these presents restore to * * * C---- S---- * * * his civil rights forfeited by him by reason of his conviction of the crime of grand larceny in the superior court for the county of Pierce, on to wit: the 28th day of May 1919.
Dated the 27th day of December 1946. [SEAL] MON C. WALLGREN, Governor of Washington.
By the Governor:
ROY J. YEOMAN, Assistant Secretary of State.
In 1947, the Attorney General of the State of Washington in response to an inquiry from the Governor's office of that State "as to whether or not a final discharge restoring Civil Rights is equivalent to a pardon," furnished the following statement:
* * * the effect of a final discharge restoring civil rights executed pursuant to the provisions of Rem.Rev.Stat. 10250 is the equivalent of an unconditional pardon by the chief executive of this State. Both have the effect of unconditionally restoring all civil rights, indicating that the previously convicted person is trustworthy and reliable and that his final release is compatible with the welfare of society. Both the final discharge and the unconditional pardon recognize the fact of conviction of a criminal and neither of the instruments operates to obliterate the guilt of the convicted person.
* * * we are of the opinion that (restoration to civil rights) is, under the decisions of our Supreme Court, the equivalent of a pardon and that if deportation * * * would not result had a pardon been issued, then the same result would be reached by virtue of * * * final discharge and restoration of civil rights by the State of Washington.
The opinion of the Attorney General recites several cases of the courts of Washington, among them State v. Cullen, 127 Pac.2d 257. This case which reviews decisions in the State of Washington as to the effect of an unconditional pardon contains the following statement:
Our cases proceed upon the theory that an unconditional pardon goes no further than to restore the accused to his civil rights and remit the penalty imposed for the particular offense of which he was convicted insofar as it remains unpaid (p. 259).
In a letter dated July 20, 1951, the Attorney General of the State of Washington reiterated his opinion that a restoration of civil rights is the equivalent of an unconditional pardon by the chief executive of the State.
No decisions or opinions as to the effect of the restoration of civil rights in the State of Washington are cited by the Service as being contrary to the opinion above-expressed. Matter of O----, 3 IN Dec. 209 relied upon by the Service is distinguished by the fact that it concerns an automatic restoration to civil rights in Nebraska upon the completion of a prison term where a certificate of good conduct is issued by the warden. The restoration was through a Board of Pardons.
In regard to the Service contention that we should not rule the restoration to civil rights equivalent to a pardon for deportation proceedings until the federal courts have so declared, we must state that such a view will require a ruling that restoration to civil rights is not sufficient to prevent deportation without a prior finding to such effect by a Federal court. Such a ruling is not justified on the record. A restoration to civil rights in the State of Washington is not an automatic grant. It is a matter of executive clemency, issued by the only pardoning power. There is no showing that it is subject to cancellation. It carries with it more than the right to franchise. The Supreme Court of the State wherein it was granted has held an unconditional pardon to be no more than a restoration to civil rights. The Attorney General of the State is of the opinion that restoration to civil rights is equivalent to a pardon. In view of these factors, and the fact that the Government has the burden of establishing deportability, we do not believe we are justified in ruling that the restoration to civil rights is not sufficient to defeat deportation. (See Matter of G----, 55933/494 B.I.A. 1950, 4 IN Dec. 73.)
In regard to the second contention we fail to see the importance of the fact that the restoration to civil rights need not be reported to the legislature, in view of the pronouncements of the court that a pardon is merely the equivalent of a restoration to civil rights.
With regard to the third contention, we note first, that the respondent was not convicted of the crime of perjury and is competent to give evidence as a witness; and, second, we note that the Attorney General of the State of Washington in a letter dated July 20, 1951 stated that:
Sec. 1212 of Remington's Revised Statutes of the State of Washington provides: "No person offered as a witness shall be excluded from giving evidence by reason of conviction of crime, but such conviction may be shown to affect his credibility: Provided, that any person who shall have been convicted of the crime of perjury shall not be a competent witness in any case, unless such conviction shall have been reversed, or unless he shall have received a pardon."
If the Governor may, by pardon, set aside the disability in its entirety, he may set aside any portion thereof. The ability to testify is embraced within the general description of "civil" rights. It is therefore our conclusion that proper gubernatorial restoration of civil rights restores the ability to testify of one previously convicted of the crime of perjury.
The Attorney General goes on to say that there has been no judicial interpretation of this language and there is a possibility that since the section in question specifically uses the word "pardon" there is a possibility that a strict construction of the language would make the holder of a restoration to civil rights who has been convicted of perjury not competent as a witness. His letter points out that at the time of the enactment of the provision in question there was no statutory provision for the restoration of civil rights.
The respondent has met his burden of coming forward with evidence to prove that he is not deportable. The burden of proof which is upon the Government to prove deportability has not been sustained.
Proceedings will be ordered terminated.
Order: It is ordered that the outstanding order of deportation be withdrawn.
It is further ordered that the proceedings be terminated.