NEW ORLEANS — The 5th Circuit Court of Appeals has agreed
to deny citizenship to a permanent resident who had been convicted of
conspiracy to commit false or altered lottery tickets.
In an opinion issued Feb. 9, the court affirmed a ruling from the
Western District of Louisiana that found Hang Thuy Nguyen had not
received a "full and unconditional executive pardon" for
her state-court aggravated-felony conviction.
"We find no error and affirm," wrote Judge Jerry Smith.
Judges Grady Jolly and James Graves concurred.
Nguyen was convicted in 2004 and received a suspended sentence of
two years’ imprisonment and two years’ active probation.
After completing probation, she was granted an automatic
first-offender pardon, the opinion stated.
When she applied for naturalization, the U.S. Citizenship and
Immigration Services denied her application. It held that her
conviction permanently prevented her from "demonstrating good
moral character and thus from being naturalized."
The district court granted summary judgment to USCIS when Nguyen
sought judicial review, on the ground that Louisiana's automatic
first-offender pardon is not a "full and unconditional executive
On appeal, Nguyen argued that state statute implementing the
first-offender pardon "demonstrates that this is a full pardon
such that it falls within the regulation," the opinion stated.
"We disagree," Smith wrote.
"Among the requirements to become a naturalized citizen is to
have been a 'person of good moral character' during the proscribed
five-year waiting period as a lawful permanent resident," he
wrote. "An applicant for naturalization is permanently barred
from demonstrating good moral character if convicted of an aggravated
He noted that regulations allow an exception for those who have
received a "full and unconditional executive pardon."
Smith also pointed to the Louisiana Constitution which provides
for two different types of pardons — “discretionary or
commutation issued by the governor” and a “pardon for first-time
The latter is issued “automatically upon completion of his
sentence, without a recommendation of the Board of Pardons and
without action by the governor," the opinion stated.
Smith wrote that the USCIS has interpreted the second automatic
first-offender pardon not to be a “full and unconditional executive
He further wrote that the state distinguishes between the effects
of its pardons.
"A gubernatorial pardon 'precludes the use of a pardoned
offense to enhance punishment' and restores the individual to 'a
status of innocence,'" he wrote.
"An automatic first-offender pardon does not restore 'a
status of innocence' and, accordingly, 'does not preclude
consideration of a first felony conviction in adjudicating a person
as a habitual offender,'" he added.
Ngyuen attempted to argue that that there is no such distinction
because the Louisiana statute does not distinguish between them for
“purposes of considering pardoned offenses under habitual-offender
"Given that Louisiana does not consider the automatic
first-offender pardon to restore 'a status of innocence,' as does a
gubernatorial pardon, USCIS’s interpretation that an automatic
first-offender pardon is not a 'full and unconditional executive
pardon' is permissible," Smith wrote in affirming summary
judgment for USCIS.