Immigration Law--Eleventh Circuit Granted Pardon Outside of the Federal Definition of a Full Pardon--Castillo v. United States AG, 756 F.3d 1268 (11th Cir. 2014).

• Author: Pena, Emerson R.

The Immigration and Nationality Act (INA) allows the United States, at the discretion of the Attorney General, to remove any alien who falls within the classes of deportable aliens. (1) Pursuant to 8 U.S.C. [section] 1227(a)(2)(A)(iii) (section 1227), an alien is subject to removal as an alien that has been convicted of an aggravated felony after being admitted to the United States. (2) However, pursuant to 8 U.S.C. [section] 1227(a)(2)(A)(vi) an alien may be permitted a waiver of removability, which has the effect of negating grounds of removability based on a previous conviction of a deportable offense. (3) In Castillo v. United States Attorney General, (4) the United States Court of Appeals for the Eleventh Circuit considered whether an alien was deportable as an aggravated felon for a state pardoned conviction, and the court held that Castillo was deportable because the pardon he received did not relinquish the punishment for the pardoned conviction and did not reinstate all his civil rights. (5)

In 1990, Jose Castillo became a lawful permanent resident of the United States. (6) Three years later, on April 7, 1993, Castillo was convicted of statutory rape under Georgia law. (7) Castillo's conviction resulted in a 5-year prison sentence, but the trial judge allowed Castillo to serve this sentence on probation. (8) In April 2012, the Georgia State Board of Pardons and Paroles pardoned Castillo for his prior conviction of statutory rape. (9) While the pardon Castillo received reinstated most of his political and civil rights, it did not allow him to exercise his right to bear arms. (10)

Subsequent to the granting of the pardon, on October 23, 2012, Castillo received a notice from the Department of Homeland Security that he was scheduled to appear at an immigration removal proceeding. (11) The Department of Homeland Security conceded that Castillo was removable due to his status as an aggravated felon. (12) While detained at an immigration facility, Castillo challenged his removal proceeding on the grounds that he was eligible for a waiver of removability. (13) Castillo's motion to terminate his removal was denied by an immigration judge on February 14, 2014. (14) Castillo appealed his case to the Board of Immigration Appeals, but his case was subsequently dismissed. (15) After the Board of Immigration Appeals dismissed Castillo's case, he petitioned for the review of that decision. (16)

Since the late 1800s, the United States has had federal regulations against immigrants with criminal records. (17) The first official piece of legislation that addressed the deportation of immigrants for committing particular crimes was enacted in 1917. (18) In addition to enumerating the grounds of deportation, the 1917 Act provided a provision that waived the deportation of individuals who had been pardoned for the deportable offense. (19) 19 The next major modification of immigration regulation came with the Immigration Act of 1952, which laid the grounds for deportation, as well as an exception from deportation for those who had been fully and unconditionally pardoned. (20) Since 1952, Federal Acts and the Immigration Act of 1990 have amended the INA, but the pardon provision waiving the removability for certain offenses has survived the revisions to the INA. (21) Title 8 of the United States Code, section 1227 is the current statute that establishes the category of deportable aliens who are subject to removal from the United States, and outlines waivers of removability for non-citizens who have received a full and unconditional pardon for specific offenses. (22)

The INA provides a waiver of removability to non-citizens who have been fully and unconditionally pardoned by a governor from the non-citizens' respective state or the President of the United States. (23) Under the Pardon clause, found in the U.S. Constitution, the President may grant a pardon for offenses against the United States, but this executive power is rarely exercised to pardon non-citizens. (24) Governors or the highest chief executive from the respective state may also grant pardons for purposes of barring deportation due to the IN A bestowing this right on states. (25) While the INA affords a waiver of removability to non-citizens who have been granted a full and unconditional pardon by the President of the United States or Governor, a full and unconditional pardon is not defined by the act. (26) Conflicts arise between federal law and state law when a pardon that has been granted to an individual to prevent deportation fails to come within the definition of a pardon under Federal law. (27) When terms in a statute are undefined, courts determine the ordinary meaning of the terms by referring to dictionaries and the common meaning of the word in the legal context. (28)

Many courts in the criminal law context have interpreted full and unconditional pardons. (29) The Supreme Court, in the landmark case Ex parte Garland, (30) analyzed a full presidential pardon that was given to a prior Confederate government official. (31) The Court found that when a full pardon is granted it restores an individual of all his civil and political rights as if the person had never been convicted. (32) Similarly, in Knote v. United States, (33) the Court analyzed whether an individual who was pardoned for the offense of treason was able to recover the proceeds from the sale of his confiscated property as a result of the conviction. (34) The Court held that while a full pardon prevents all punishment imposed by the offense and restores the individual of all his rights, a pardon cannot access money that has al ready been placed in the United States Treasury, unless Congress has authorized such an action by statute. (35)

In Castillo, the Eleventh Circuit held that a waiver of removability under section 1227(a)(2)(A)(vi) is applicable only when an alien has been granted a full pardon that has restored all of the rights that he had lost due to the underlying conviction. (36) A full and unconditional pardon is not defined within section 1227; therefore, the court looked to the ordinary meaning of those terms in legal and non-legal dictionaries. (37) After determining a full and unconditional pardon to be defined as a pardon that reinstates all lost rights from a pardoned conviction, the court looked to the interpretation of a full and unconditional pardon in other legal contexts. (38) The court found that a full and unconditional pardon is generally understood to remove all forms of punishment and disabilities arising from a prior conviction, thereby restoring all lost rights to the pardoned party. (39) The court surmised that because Castillo's pardon did not restore his right to bear arms it was not considered, for the purposes of section 1227, as a full and unconditional pardon because it did not remove all punishments and disabilities under the law. (40)

After concluding that Castillo's pardon did not vindicate his right to possess a firearm, the court was still faced with determining whether section 1227 only required a pardon that erased the criminal conviction. (41) The court held that section 1227 does not suggest that a pardon needs to only clear a criminal conviction, but that the statute uses the phrase "with respect to a criminal conviction" to emphasize that section 1227 applies to an alien who has been convicted of a crime. (42) The court supported this holding by relying on the legislative history of the INA, noting that the INA has always required a pardon to be full and unconditional in order to prevent deportation. (43) In light of the legislative history of the INA, the court concluded that Congress did not intend to limit the meaning of a full and unconditional pardon by adding the words "with respect to a criminal conviction." (44)

In reviewing whether a state pardon constituted a full pardon, the Eleventh Circuit Court of Appeals properly applied the well-settled meaning of a full pardon to the pardon received in Castillo and held that a pardon that did not reinstate all civil rights was not full under section 122745 The court correctly found that although Castillo was granted a pardon by the state of Georgia that incorporated the phrase "unconditionally and fully pardons," the pardon neglected to restore all lost rights, thus failing to meet the well-settled meaning of a full pardon. (46) The analysis of a full pardon became evident when the court found uniformity in the definition of a full pardon in non-legal dictionaries, legal dictionaries, and the interpretation of a full pardon in other legal contexts...