PARDONS

By Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)554-1589
Website: www.lawschell.com

A non citizen is inadmissible to the United States if he or she has committed or, in some cases admits to committing, a crime involving moral turpitude (unless the person was under 18 years of age at the time the crime was committed, he or she committed only one crime the penalty for which was less than one year imprisonment and a sentence of six months or less was imposed, and the crime was committed or the person was released from confinement more than five years before applying for admission) or multiple criminal convictions for which the aggregate sentences to confinement were five years or more. A non citizen may be removed from the United States if he or she was inadmissible at the time of entry or upon conviction of the following: (1) a crime involving moral turpitude committed within five years of entry (or 10 years in the case of an offender with certain lawful permanent resident status) and for which a sentence of one year or longer may be imposed; (2) two or more crimes of moral turpitude not arising out of a single scheme; (3) an aggravated felony; (4) a drug offense (other than one involving possession of 30 grams or less of marijuana for one's own use); (5) certain firearms offenses; (7) certain immigration offenses; or (8) a domestic violence offense.

There are some forms of relief available to non citizens with criminal convictions under certain conditions which may include the following:
(1) cancellation of removal for certain permanent resident
(2) former INA section 212(c) relief
(3) asylum
(4) withholding or removal
(5) relief under the Convention Against Torture (CAT)
(6) general nonimmigrant waiver
(7) waiver for certain criminal conduct
(8) the "petty offense" exception
(9) citizenship

Unfortunately, most of the available relief does not eliminate grounds of inadmissibility for a great number of crimes.

Non citizens subject to removal based on convictions for crimes of moral turpitude, aggravated felonies, high speed flight and multiple criminal convictions may avoid removal if granted a "full and unconditional" pardon by the President, the governor of the State, or a constitutionally recognized executive. A pardon will only waive the grounds of removal specifically set forth in INA section 237(a)(2)(A)(v) [8 U.S.C.A. section 1227 (a)(2)(A)(v)] which are crimes of moral turpitude, multiple criminal convictions, aggravated felony, and high speed flight from a DHS checkpoint. No implicit waivers may be read into the statute.

A pardon eliminates the immigration consequences of a given crime for future entries. Therefore, a non citizen who has received a pardon is not deportable as inadmissible at the time of admission for a crime or crimes covered in the pardon.

State of New York Pardon
The authority to issue pardons in the state of New York is vested with the governor. Similar to procedures in other states, the governor is required to report annually on the number of pardons and his or her reasons for granting such. The Board of Parole is charged with advising the governor on clemency cases when so requested. Absent compelling reasons, a pardon will not be considered if there are administrative remedies available. In New York, pardons are only considered for the following reasons: (1) to set aside a conviction in cases of innocence; (2) to relieve collateral disability; or (3) to prevent deportation or permit reentry. An Executive Clemency Bureau within the Division of Parole is charged with screening candidates for eligibility requirements, gathering materials relating to applications, and responding to letters from applicants and other relating tot he application process. In recent years there have been very few pardons granted in New York.