MATTER OF R

In DEPORTATION Proceedings

A-1472888

Decided by Board June 9, 1960

Pardon-Wisconsin-Restoration of civil rights not a "pardon" within section 241(b) when granted subsequent to 1947 change in Wisconsin law.

Pardon restoring civil rights issued by the Governor of Wisconsin subsequent to 1947 amendment of State law providing for automatic restoration of civil rights upon completion of sentence is not a full and unconditional pardon within meaning of section 241 (b) of the 1952 act.

CHARGE:

Order: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251(a) (4)]—After entry convicted of 2 crimes involving moral turpitude, to wit: rape and adultery.

BEFORE THE BOARD

Discussion: By order dated February 29, 1960, the special inquiry officer directed that the proceedings be terminated and that the case be certified to us for final decision. The conclusion to terminate the proceedings is based on a finding by the special inquiry officer that a pardon issued by the Governor of Wisconsin on April 17, 1958, restoring civil rights, constitutes a full and unconditional pardon within the provisions of section 241(b) of the Immigration and Nationality Act. The Service excepts to such finding and urges that the decision of the special inquiry officer not be affirmed but that the case be remanded to permit respondent an opportunity to obtain a full and unconditional pardon.

Respondent is a 49-year-old married male alien, a native and citizen of Mexico. He testified that he last entered the United States at Laredo, Texas, on January 8, 1921. On January 9, 1931, he was convicted in the Municipal Court, Milwaukee, Wisconsin, for the offense of rape. On October 6, 1941, he was convicted in the same court of the crimes of adultery and false swearing. The charge in the order to show cause is based on the conviction for rape and adultery.

The pardon restoring civil rights, which the special inquiry officer has ruled is a full and unconditional pardon, mentions the con

victions for rape and for adultery and false swearing, and that respondent had served the full terms of his imprisonment and had been discharged therefrom in 1932 and 1943, respectively. The pardon recites that respondent was also convicted on March 6, 1952, in the Milwaukee Municipal Court of the crime of abandonment of a minor child and thereupon placed on probation for the term of 2 years; that the full term of probation had been served; and that respondent had been discharged therefrom on March 4, 1954. The pardon then concludes with the following:

WHEREAS, Pardon is solicited in behalf of the said R- J-R to restore his civil rights, and it appearing that he has led an upright and honorable life, and conducted himself as a peaceable and law-abiding citizen since his discharge from probation, and it appearing that he is deserving of executive clemency;

NOW, THEREFORE, KNOW YE, That in consideration of the premises, I, Vernon W. Thomson, Governor of the State of Wisconsin, have restored, and by these presents do restore to the said R-JR- all civil rights forfeited by him in consequence of the said offenses or of the said convictions.

Our decision in Matter of G, 4 I. & N. Dec. 73, cited by the special inquiry officer in support of his ruling, involved a restoration of civil rights by the Governor of Wisconsin on June 26, 1946, prior to the 1947 session of the Wisconsin State legislature during which a law was passed providing for the automatic restoration of civil rights to a person by serving out his term of imprisonment or otherwise satisfying a sentence. In Matter of G- supra, we pointed out that prior to this 1947 legislation civil rights could be restored by a pardon only according to a 1916 opinion of the Attorney General of Wisconsin. We also mentioned that the office of the then incumbent Attorney General of the State of Wisconsin, in a communication dated June 10, 1950, stated that the June 1946 order of the Governor restoring civil rights was in legal effect a full pardon.

In the instant case, however, the restoration of the civil rights by the governor occurred after the enactment of the 1947 law which provides for an automatic restoration of such rights. Further, according to a letter dated May 29, 1959, to the special inquiry officer from the Secretary to the Governor of Wisconsin, it would appear that the pardon issued to the respondent is not an absolute one but restored his civil rights only. This letter reads in pertinent part as follows:

The application received from Mr. R- was for restoration of civil rights, and consequently the pardon which was issued on April 17, 1958, only restored his civil rights.

If an absolute pardon is required by your department in order to avoid deportation, Mr. R should file such an application with this office, and it will be given prompt attention.

It is obvious from the provisions of section 241(b) of the Immigration and Nationality Act with respect to a full and unconditional pardon that an absolute pardon is required to eliminate a crime involving moral turpitude as a ground for deportation. Inasmuch as the pardon issued to the respondent was granted after the 1947 law providing for the automatic restoration of civil rights and as it appears that the pardon granted respondent is not an absolute pardon, it is our conclusion that the two crimes on which the order to show cause is based have not been eliminated for deportation purposes. Accordingly, we will remand the case to the special inquiry officer to afford respondent an opportunity to make application for a full and unconditional pardon under the Wisconsin statutes.

Order: It is ordered that the proceedings be reopened in accordance with the foregoing and for such other actions as may be appropriate.

MATTER OF F——

In SECTION 245 Proceedings

A-11641025

Decided by Regional Commissioner June 16, 1960

Approved by Assistant Commissioner June 21, 1960

Adjustment of status-Section 245 of 1952 act-Alien who intended to pursue application at time of readmission as nonimmigrant not bona fide nonimmigrant.

Application for adjustment of status filed prior to nonimmigrant's temporary departure from the United States and pending upon her return to this country is denied on the ground that applicant was not a bona fide nonimmigrant at the time of readmission when it was her intention to pursue her application for permanent residence under section 245 of the 1952 act.

BEFORE THE REGIONAL COMMISSIONER

Discussion: The applicant, a single, 35-year-old native and citizen of England, was admitted to the United States as a nonimmigrant treaty trader on April 1, 1959. On February 2, 1960, she filed this application for status as a permanent resident. Within a few days, and before the application could be adjudicated, she departed to England to visit a friend who was ill. She returned to the United States and on February 28, 1960, she was again admitted as a nonimmigrant treaty trader. It was her intention at the time of entry to pursue her application for status as a permanent resident and on May 4, 1960, the district director approved her application and certified the case to this office for review.

The applicant has established that a quota immigrant visa is immediately available to her and she has established that she is admissible to the United States as an immigrant. The issue to be decided is what effect, if any, her departure from the United States had upon her application.

It is clear from the legislative history that the procedure for acquiring status as a permanent resident authorized under section 245 of the Immigration and Nationality Act was provided by the Congress for one specific purpose. It was devised solely to obviate the need for departing from the United States for the purpose of securing an immigrant visa in the case of the alien who at the

time of admission as a nonimmigrant had no intention of acquiring the status of a permanent resident but who, subsequent to entry, has a change of mind and seeks such status.

The alien outside the United States who seeks to enter the United States for permanent residence must comply with the regular procedures set forth in the Immigration and Nationality Act for immigrants. He must secure an appropriate immigrant visa from an American consular officer abroad and must apply for admission to the United States as an immigrant. He does not have the option of applying for admission as a nonimmigrant with the intention of utilizing the procedure authorized under section 245 to acquire the status of a permanent resident. The statements concerning adjustment of status in the United States contained in the reports of the committees of both houses of the Congress which accompanied the Immigration and Nationality Act at the time of enactment support this interpretation. In speaking of adjustment of status generally, both committee reports state:

*** The committee is aware, too, of the progressively increasing number of cases in which aliens are deliberately flouting our immigration laws by the processes of gaining admission into the United States illegally or ostensibly as nonimmigrants but with the intention of establishing themselves in a situation in which they may subsequently have access to some administrative remedy to adjust their status to that of permanent residents. * * * This practice is threatening our entire immigration system and the incentive for the practice must be removed. [Senate Report No. 1137, 82nd Congress, 2d Session, p. 25; House Report No. 1365, 82nd Congress, 2d Session, pp. 62–63; emphasis supplied.]

When section 245 was amended by the Act of August 21, 1958, the requirement that the applicant must have been a bona fide nonimmigrant at the time of admission was retained. In this respect the committee report which accompanied the amendatory legislation contained a clear statement that the legislation was not intended to benefit the alien who has entered the United States in violation of the law. (House Report No. 2258, 85th Congress, 2d Session, p. 3).

If we are to comply with the clearly stated intent of the Congress to exclude from the benefits of section 245 those aliens who have gained entry into the United States in an unlawful manner, an application filed under the provisions of section 245 must be decided on the basis of the facts surrounding the last entry of the alien into the United States.

The present application, when originally filed, was based on the applicant's admission to the United States on April 1, 1959. It is conceded that at the time of that admission she was a bona fide nonimmigrant. As has been pointed out above, she departed from the United States before a decision was reached on her application.

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