Can a Pardon by the Governor Prevent Deportation?
What is a a gubernatorial pardon?
[Source: Immigration Legal Resource Center; UCLA School of Law Criminal Defense Clinic
In California, a pardon restores certain rights people lost a result of criminal conviction, for example the ability to obtain certain professional licenses. A pardon is formal recognition that an individual who has committed a crime has undergone transformation and become a beneficial member of the community. California gubernatorial pardons are full and unconditional and can help non-citizens by eliminating certain criminal grounds of deportation or bars to citizenship.
The California pardon process
Under the California Constitution, the Governor has the power to pardon persons convicted of California state crimes. (California Constitution, art. V, § 8(a).)
The Two Ways to Obtain a Pardon
1. Obtain Certificate of Rehabilitation from the California Superior Court. An applicant must reside continuously in California for a minimum of five years prior to applying for a Certificate of Rehabilitation. When the Certificate of Rehabilitation is granted by the Superior Court judge, it automatically converts to a pardon application that is submitted to the Governor. An applicant may provide additional documentation for the Governor to consider.
2. Direct application to the Governor without first pursuing a Certificate of Rehabilitation. Applicants living outside of California and persons seeking a pardon of a misdemeanor must apply directly. Others may apply directly because their situation is too urgent to wait for the Certificate of Rehabilitation process. To apply directly, applicants should submit the Pardon Application available on the Governor of California’s webpage.
Anyone who was convicted of more than one felony conviction in two or more separate prosecutions, must apply directly to the Governor for a pardon. The Governor submits all papers and documents relied upon in a petition for a pardon to the Board of Parole Hearings. (California Penal Code § 4802.) The Board of Parole Hearings completes an investigation and provides their written recommendation to the Governor. (California Penal Code § 4813.) The Governor must then seek approval from the California Supreme Court before moving forward with granting the pardon. (California Constitution, art. V, § 8(a); California Penal Code § 4850.) Four judges must concur in order for the Governor to grant a pardon for those with more than one felony conviction.
A Pardon’s effect on immigration proceedings
The Immigration and Nationality Act (INA) states that a gubernatorial pardon may lessen a noncitizen’s risk of removal by removing certain conviction-based grounds of removal. A pardon may allow non-citizens to reopen an old removal case, to terminate a pending removal case, to become eligible for certain types of relief from removal, and to become eligible to naturalize. Under Section 237(a)(2)(A)(i-iv) of the INA, a full and unconditional gubernatorial pardon expressly waives deportability for four categories of offenses:
(1) crimes involving moral turpitude (“CIMTs”);
(2) two or more CIMTs not arising out of the same scheme of misconduct;
(3) aggravated felonies; and
(4) high-speed flight from an immigration checkpoint.
Pardon for these offenses can completely eliminate the grounds for deportation and remove the bar to citizenship.
For non-citizens with convictions outside these four categories, a gubernatorial pardon may prevent mandatory deportation and make someone eligible for discretionary relief from an immigration judge.
Requirements of a Pardon Application
Applicants for a Certificate of Rehabilitation or a gubernatorial pardon should demonstrate that in the time following their offense they have lived an honest and upright life, obeyed the law, and exhibited good moral character. (California Penal Code § 4852.05.) An applicants must show that they have been a productive, law-abiding citizens with good moral character and strong ties to the community since their release.
The Certificate of Rehabilitation generally requires that seven years have passed since being released from custody, probation, or parole, but specific offenses have different guidelines. (California Penal Code § 4852.03.) The Superior Court has the option of granting a Certificate of Rehabilitation in the interest of justice before that period has elapsed. (California Penal Code § 4852.22.)
Applications for a pardon or Certificate of Rehabilitation should include support letters from family members, friends, employers, community leaders, immigration experts, and/or politicians who can speak to why the applicant deserves a pardon.
Applicants facing possible deportation should explain how the pardon would help to reduce the threat of deportation. Evidence of rehabilitation and community ties should be included with the pardon application. Applicants for pardons and Certificates of Rehabilitation also must follow the rules requiring giving notice to the District Attorney. (California Penal Code §§ 4804, 4805, 4852.07.)
Expedited review under California’s Pardon and Commutation Reform Act
California’s Pardon and Commutation Reform Act of 2018 (AB 2845) signed by former Gov. Jerry Brown and in effect as of January 1, 2019 requires the state parole board to consider an expedited review of pardon applications from individuals at risk of deportation.
The law also requires the board to issue recommendations within a year of receiving a pardon application and to notify individuals when their application is received and when a recommendation is issued. Previously there were no statutory requirements for how long the parole board has to review or issue recommendations for pardon and commutation applications.
Applying for a pardon or postgrad-conviction relief
If you are considering applying for a pardon, you should also explore other forms of post-conviction relief that could apply to your situation. You may seek a Certificate of Rehabilitation either in the county where you reside currently or where you were convicted. The Certificate of Rehabilitation application forms should be available on your county’s Superior Court website. Some public defender offices will assist individuals to apply for a Certificate of Rehabilitation.
For more information on the pardon process, you may obtain the current application form on the webpage for Governor Gavin Newsom: https://www.gov.ca.gov/wp-content/uploads/2019/03/Pardon-Application.pdf.
The experienced legal professionals at the San Francisco Uthman Law Office can assist you with pursuing post-conviction relief or a pardon to eliminate barriers to employment or citizenship. The skilled Uthman Law Office Criminal Defense professionals can guide you through the process of obtaining a Certificate of Rehabilitation or Pardon. Attorney David Uthman has over 20 years of experience as a litigation attorney and almost a decade of experience as a police officer. At the Uthman Law Office, we have the tools to get results and are ready to start helping you. Call us today at (415) 556-9200 to schedule your FREE initial consultation.