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STATE PARDON DOES NOT ENTITLE INADMISSABLE ALIEN CONVICTED OF CRIME RELATED TO CONTROLLED SUBSTANCE TO WAIVER OF DEPORTABILITY

A recent 9th Circuit Court of Appeal decision held that a state pardon does not remove all legal consequences of a conviction.

This case involves an illegal alien who had a long history of illegal presence in the United States. On February 4, 1993 he pled guilty to unlawful possession of cocaine.

On April 30, 2001, he filed an application for adjustment of status to permanent resident due to his marriage to a United States citizen. The application was denied by the Department of Homeland Security for two reasons: 1) he was inadmissible for status as a permanent resident due to his second removal within a ten year period; and 2) violating the law relating to a controlled substance in 1993.

The denial included a Notice to Appear before an IJ for removal proceedings. He was subject to removal pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii) providing for removal of an inadmissible alien who has been convicted of crime relating to a controlled substance.

Prior to his removal however, the Governor of the State of Washington granted him a “Full and Unconditional Pardon.” At the removal hearing, he requested a waiver of the controlled substance inadmissibility charge, which would permit him to adjust his status to that of a lawful permanent resident. The IJ rejected his request, reasoning that although a waiver is available for aliens who have been admitted into this country, no comparable waiver is available for aliens who have not been admitted into the country.

The BIA affirmed the IJ’s ruling. The 9th Circuit Court of Appeal agreed with the BIA that a state pardon may be applicable to criminal grounds of deportability but 8 U.S.C. § 1182 contains no equivalent waiver provision pertaining to the criminal grounds of inadmissibility.

If you or someone you love is being faced with a criminal appeal in California, don’t hesitate to get an attorney! The fact that a trial court has ruled against you doesn’t preclude you from seeking the correct judgment in a higher court. You need a qualified and aggressive appeals attorney who is knowledgeable in both criminal and immigration law to fight for you and your freedom. Call a Wallin & Klarich associate 24 hours a day, 7 days a week at 1-888-749-0034 or find us online at www.wklaw.com. Our 30 years of experience and network of aggressive attorneys is sure to give you the help you need.

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