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The subject of legislative action to provide automatic restoration of civil rights upon completion of sentence is discussed in an article. published in the Wisconsin Law Review. The position there taken recognizes the supreme pardoning power of the governor and the mandate under existing law which requires a general pardon to restore civil rights. It takes issue with certain legal opinion prevalent in the state which adheres to the theory that a constitutional amendment is necessary to supplement the supreme pardoning power of the governor with a pardon provided by the legislature and limited solely to the restoration of civil rights which would automatically accrue to any convict merely upon completion of sentence. The article, in our judgment, supports the conclusion we have reached, to wit, that the document presented by the respondent is as complete a pardon as can be issued by the governor under existing law.18 This view is supported by prior decisions of this Board, the Board of Review, the Commissioner and the Attorney General.1
Our position in this regard also appears to be supported by an opinion of the Attorney General of the State of Wisconsin. The governor requested an opinion from Attorney General Reynolds as to whether an alien's civil rights could be restored by the Governor. In his opinion the Attorney General said: "While a pardon by the governor will not restore to him (alien) the right to vote which he has not nor ever had in this state, nevertheless, it will pardon him for the offense which he has committed, and that fact may aid him in securing the right to vote. *** While I am constrained to hold that
17 Wisconsin Law Review (1946), p. 281.
18 During the 1947 session the State legislature added sec. .078 to ch. 57 of the Wisconsin Statutes (Laws of Wisconsin, 1947, ch. 477). This section reads as follows:
"Civil Rights Restored to Convicted Persons Satisfying Sentence.-Every person who is convicted of crime obtains a restoration of his civil rights by serving out his term of imprisonment or otherwise satisfying his sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his sentence or otherwise satisfied the judgment against him is evidence of that fact and that he is restored to his civil rights."
It is apparent from the foregoing that those who adhered to the theory that a Constitutional amendment was not necessary to provide a legislative pardon for the sole purpose of restoring civil rights upon completion of sentence were in the majority at this session of the legislature. Their action lends additional support to the conclusion we have reached; namely, that prior to the enactment of the foregoing section a full and unconditional pardon on the part of the Governor was necessary for the restoration of civil rights.
19 Matter of 0, 56011/400 (A. G. August 23, 1940); Matter of F—, 55964/577 (January 30, 1926); Mutter of T——, 55713/865 (January 30, 1943); Matter of S―, 55944/377 (July 14, 1937); Matter of M- A-2109566 (March
20, 1940); Matter of S., A-3386334 (June 30, 1945); Matter of F, A-1838533 (February 26, 1945); Matter of A- A-3386329 (February 18, 1947).
14r 1941 many & exed to this man by a pardon, still he crime for which he has already A. G. Wisc. 1068, 1089 December Vater C. Owen wrote in like vein in
A person convicted of felony does p, his conviction deprives him of ca is the right to vote. These civil by a discharge from imprisonment or can only be restored by a pardon." 5 Cuary 2, 1916).
Nat Attorney General, State of Wisconsin, executive clemency granted the respondent relieving him from the legal disabilities on of the offenses in question. Assistant iam A. Platz in a communication dated June te, "The order of Hon. Walter S. Goodland, ...n, dated, June 26, 1946, is in legal effect a full
also have conditional pardons and commutation ea of which is material here." Thus, it is clear from the Attorneys General referred to above that prior 、、o enactment of 1947 (see footnotes 11 and 18) a full ao Governor was required to restore civil rights in the
to the decision in the Matter of 0— (supra), it is at the controversy in that case and the determinate factors wech it appears the Acting Attorney General based his conneither arise nor exist in this case. The question for determithere was whether a warrant of discharge which restored civil in the State of Nebraska as a matter of course constituted a al and complete pardon within the meaning of our immigration law. The Acting Attorney General decided that it did not. In the case at bar our position is supported by the following rationale not present in the O- case (supra):
(1) The document presented by the respondent was issued by the only pardoning power in the State, the Governor, in accordance with the State constitution, the language of which does not limit the "civil rights" which the recipient could have restored to him. The document presented in the case was issued under a statute supplementing the supreme pardoning power set forth in the State constitution, thereby giving rise to a doubt as to whether it constituted a full and complete pardon.
(2) Unlike Nebraska, the respondent here had only one source from which to seek a pardon; namely, the Governor. No
restoration of civil rights came to him as a matter of course
by merely serving his sentence.
(3) Once accepted by the beneficiary, the Governor cannot revoke an unconditional pardon in Wisconsin.20 The document presented appears to fall in this category. In the State of Nebraska there is a possibility that the warrant or discharge may be recalled by executive authority, thereby canceling any benefits obtained under the statute restoring civil rights. (4) Restoration of civil rights in Wisconsin amounts to more than restoring the right of franchise, which is meaningless to an alien; it also carries with it certain other benefits as noted above. We find no similar benefits accruing to a convict in the State of Nebraska who has received a warrant of discharge. (5) The pardon received by the respondent must be reported to the State legislature in the same manner as pardons issued to those who have not completed sentence. There appears to be a distinction in the manner of recording in the State of Nebraska a general pardon issued by the Board of Pardons and a warrant of discharge issued pursuant to legislative
Since the document presented by the respondent appears to meet all of the requirements of the State constitution and has not been restricted by the governor, we are of the opinion, for the reasons aforesaid, that it constitutes a full and complete pardon within the meaning of the immigration laws.
Order: It is ordered that the proceedings had under the outstanding order and warrant of arrest be and the same are hereby terminated.
20 Op. A. G. Wis. 424; cf. Biddle v. Perovich, 274 U. S. 480 (1927).
IN THE MATTER OF M
In DEPORTATION Proceedings
Motion of Central Office June 21, 1950
Decided by Board October 9, 1950
Decided by Acting Attorney General November 6, 1950
Seventh proviso relief-Section 3, act of February 5, 1917-Effect of departure 1 week prior to expiration of 7 years from date of entry into the United States. The alien departed from the United States only 1 week prior to the expiration of 7 years from the date of his entry into the United States; had he remained in this country for that one additional week there could have been no question raised concerning his eligibility for favorable exercise of the 7th proviso to section 3 of the Immigration Act of February 5, 1917. His mere absence from the country during that 1 week with avowed intentions of returning does not affect his eligibility under the 7th proviso, supra. It was noted that on his departure he had executed an outstanding warrant of deportation. The decision in this case is not to be construed as overturning or modifying in any respect the decision in Matter of S-, reported in 1, I. & N. Dec. 376, and in Matter of P— 55973/653, Atty. Gen. 1941 referred to in 1, I. & N. Dec. 383.
Warrant: Act of 1924-No immigration visa. Lodged: Act of 1929-Arrested and deported-reentered within 1 year. Act of 1917-Convicted of crime prior to entry-Tampering with and damaging the motive power of a foreign vessel within the jurisdiction of the United States.
BEFORE THE CENTRAL OFFICE
(June 21, 1950)
Amended Motion to the Board of Immigration Appeals that it reconsider and withdraw its order of April 21, 1950, granting voluntary departure, preexamination and advance exercise of the 7th Proviso to Section 3 of the Immigration Act of 1917, as amended, and affirm the order of this Service dated February 6, 1950, directing that the alien be deported; or in the alternative, that the Board certify its decision to the Attorney General for review. The Commissioner's
Motion dated May 18, 1950 and heretofore filed with the Board is hereby withdrawn.
Discussion: The facts are fully set forth in the orders above mentioned. Both the Central Office and the Board of Immigration Appeals agree that the record relates to an alien who was deported from the United States when he voluntarily departed under an order of deportation 1 week short of 7 years from the date of entry.
The sole question for determination is whether an alien who is deported prior to the time he acquired 7 consecutive years domicile, in the United States, may tack on foreign residence subsequent to the deportation to make up a total of 7 years for the purposes of the 7th proviso to section 3 of the Immigration Act of 1917.
In its order of April 21, 1950, entered in the instant case, the Board of Immigration Appeals answered the question in the affirmative. This holding is contrary to the ruling in the Matter of P———, 55973/ 653 (June 4, 1941, A. G.), wherein the then Assistant to the Attorney General, Mr. Maguire, held that the 7th proviso should be held inapplicable to persons who have been deported from the United States before they have lived in this country for 7 years.
The same rule was approved and was extended to exclusion proceedings in Matter of C H de S (55872/461 1, I. & N. Dec. 376) where Attorney General Francis Biddle held on February 1, 1943, that the 7th proviso was inapplicable to persons who had been excluded from the United States before they had lived in this country for 7 years. The Attorney General stated "the word 'domicile' contemplates actual residence or place of abode which may be interrupted by a deportation (as in the P—— case), or by an exclusion order (as in the present case), notwithstanding any contrary desire or intention on the part of the alien."
On January 28, 1944, the Attorney General had occasion to consider the decisions in Matter of Cand Matter of P——. He characterized those cases as follows:
Those cases involved respectively, a deportation and exclusion order which barred the alien from the country before the lapse of 7 years from the time of original entry. It was concluded that the word "domicile" as used in the 7th proviso contemplated actual residence or place of abode (aside from bona fide temporary absences, In re E- H—— C— (56127/820, January 14, 1944) (1, I. & N. Dec. 631)), which could be terminated, despite any contrary intent on the part of the alien, by a deportation or an exclusion order before the 7 years had elapsed. (Matter of L- S, 1, I. & N. Dec. 646.) [Italics added.]
It is evident that over the course of years it has become the settled rule that the exercise of the 7th proviso is barred where an alien has been deported or excluded before the lapse of 7 years from the time of
'So in the original; however, Matter of C— H— de S involved an exclusion proceeding and Matter of P- involved a deportation.