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 pardon."
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 felony ..."
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 offenders.”
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 pardon.”
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 statutes.”
"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.