Immigration – Removal not prevented by pardon of underlying conviction

Where a native of Ghana was pardoned for aggravated felony, drug and firearm offenses, the pardon waiver of removability is limited to the grounds listed in the statute, which does not extend to controlled substance and firearm convictions. The order for his removal was proper.

Background

Soloman Tetteh, a native and citizen of Ghana, was convicted of drug and firearm offenses in Georgia. The state later pardoned him, but not before the Department of Homeland Security sought to remove Tetteh based on his convictions. The Immigration Judge, or IJ, ordered his removal, and the Board of Immigration Appeals, or BIA, dismissed his appeal. Tetteh now argues that he can’t be removed for pardoned offenses.

Jurisdiction

Tetteh first argues that a pardoned offense isn’t a “conviction” as defined by the Immigration and Nationality Act. Before the court can consider that argument, it must first ensure that it has jurisdiction over this issue.

As the government observes, Tetteh never raised his argument on the definition of “conviction” to the IJ or the BIA. That would normally preclude this court’s review, but Tetteh contends that the claim has been exhausted because the BIA addressed it. Indeed, several other circuits have found exhaustion “whenever the agency has elected to address in sufficient detail the merits of a particular issue,” even if the agency raised it on its own.

But the BIA did not do so here. The BIA “[concluded] that even if [Tetteh’s] pardon was full and unconditional, [he] would remain removable as charged” for his pardoned offenses “for the reasons cited by the Immigration Judge and argued by the [government] on appeal.” And although the IJ considered the impact of the First Offender Act on whether Tetteh’s offenses “qualify as ‘convictions’ for immigration purposes, neither the IJ nor the government addressed the effect of Tetteh’s pardon on the same. Because this new claim hasn’t been exhausted, this part of Tetteh’s petition is dismissed.

Pardon

Tetteh’s pardon waives his aggravated felony conviction as a ground for removal, but not the other grounds. Resisting this logic, Tetteh argues that his pardon should waive all grounds for removal because the statute would otherwise lead to a result that would “shock the general moral or common sense.”

If waivers are limited to aggravated felonies, Tetteh says, a pardon could “absolve a foreign national of removability for illicit trafficking in controlled substances” but not “mere possession of a controlled substance violation.” He also laments that limiting the pardon waiver to the enumerated removal grounds “de facto eliminates the pardon provision because there will always be duplicative grounds of removability outside of § 1227(a)(2)(A) to charge the foreign national.”

But this court may ignore the plain meaning of a statute only when the literal reading “produces an outcome … that can truly be characterized as absurd,” such that it can’t be what Congress intended. While the examples Tetteh offers give the court some pause, they’re not so shocking as to warrant ignoring the statutory text. Other evidence reinforces the court’s understanding that Congress sought to limit the pardon waiver to the four enumerated categories of crimes.

The plain language of § 1227(a)(2)(A)(vi) limits the pardon waiver of removability to the grounds listed in the statute. Tetteh’s pardon accordingly forecloses his removal for his aggravated felony conviction, but not for his controlled substance and firearm convictions.

Petition dismissed in part, denied in part.

Tetteh v. Garland (Lawyers Weekly No. 001-087-21, 11 pp.) (Albert Diaz, J.) Case No. 19-2357. April 27, 2021. From the Board of Immigration Appeals. Bradley B. Banias for Petitioner. Joseph H. Hunt, Linda S. Wernery and Walter Bocchini for Respondent.