This document is scheduled to be published in the Federal Register on 08/22/2024
“The Division of State (“Division”) is amending its rules at 22 CFR 40.21(a)(5), and 22 CFR 40.22(c) relating to the impact of a pardon on a visa applicant’s ineligibility below part 212(a)(2)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(2)(A)) and INA part 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)), respectively. The present regulation at 22 CFR 40.21(a)(5) gives that an alien just isn’t ineligible for a visa below INA part 212(a)(2)(A) if a full and unconditional pardon has been granted by the President of america, by a governor of a state of america, or by sure different specified officers. Equally, the present regulation at 22 CFR 40.22(c) gives that an alien just isn’t ineligible for a visa below INA part 212(a)(2)(B) primarily based on having been convicted of two or extra offenses, if a full and unconditional pardon has been granted by the President of the United States, by a governor of a state of america, or by sure different specified officers. The Seventh Circuit Court docket of Appeals just lately examined the regulation at 22 CFR 40.21(a)(5), discovering that it conflicts with INA’s provisions in part 212(a)(2)(A)(i) governing inadmissibility primarily based on conviction or admission of sure crimes, which don’t embrace an exception or waiver to that inadmissibility for candidates who obtain a pardon. … the [INA] is obvious {that a} pardon doesn’t make an in any other case inadmissible noncitizen admissible, even when a pardon can save a resident noncitizen from being eliminated … and the place company rules battle with statutory textual content, statutory textual content wins out each time. We merely can’t sq. [22 CFR 40.21(a)(5)] with the textual content and construction of the INA because it was amended in 1990. Wojciechowicz v. Garland, 77 F.4th 511, 514, 518 (seventh Cir. 2023) (inside citations and parentheticals omitted). The Division agrees with the Seventh Circuit’s opinion in Wojciechowicz because it applies to gubernatorial pardons and finds that the court docket’s evaluation relating to the shortage of underlying authority within the INA giving impact to such pardons additionally extends to the Division’s regulation at 22 CFR 40.22(c) relating to ineligibility for a number of prison convictions.”
