BIA: Grant Of A Pardon Does Not Eliminate Removability Based On Conviction For Domestic Violence Or Child Abuse

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

BIA: grant of a pardon does not eliminate removability based on conviction for domestic violence or child abuse
Immigrants' Rights Update, Vol. 17, No. 5, September 4, 2003

The Board of Immigration Appeals has ruled that the grant of a full and unconditional presidential or gubernatorial pardon does not waive removability for having been convicted of a crime of domestic violence or child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act.

In the case the BIA decided, the respondent had been charged with removability both for having an aggravated felony conviction under INA sec. 237(a)(2)(A)(iii) and for having a conviction for a crime of domestic violence or child abuse under sec. 237(a)(2)(E)(i). Both charges were based on the same conviction for sexual battery, which was pardoned by the state of Georgia.

The BIA concluded, as a matter of statutory interpretation, that the pardon eliminated removability under the aggravated felony charge but not under the domestic violence charge. It found this conclusion to be dictated by the plain language of INA sec. 237(a)(2)(A)(v), which provides that specified provisions of sec. 237(a)(2)(A) do not apply to a criminal conviction if the respondent has been granted a full and unconditional presidential or gubernatorial pardon. While the aggravated felony ground of removability is listed in this section, the domestic violence ground is not.

In re Jung Tae Suh, 23 I. & N. Dec. 626 (BIA 2003).