DOS Final Rule on Pardons (Advance Copy)

This document is scheduled to be published in the Federal Register on 08/22/2024

"The Department of State (“Department”) is amending its regulations at 22 CFR 40.21(a)(5), and 22 CFR 40.22(c) regarding the effect of a pardon on a visa applicant’s ineligibility under section 212(a)(2)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(2)(A)) and INA section 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)), respectively. The current regulation at 22 CFR 40.21(a)(5) provides that an alien is not ineligible for a visa under INA section 212(a)(2)(A) if a full and unconditional pardon has been granted by the President of the United States, by a governor of a state of the United States, or by certain other specified officials. Similarly, the current regulation at 22 CFR 40.22(c) provides that an alien is not ineligible for a visa under INA section 212(a)(2)(B) based on having been convicted of two or more offenses, if a full and unconditional pardon has been granted by the President of the United States, by a governor of a state of the United States, or by certain other specified officials. The Seventh Circuit Court of Appeals recently examined the regulation at 22 CFR 40.21(a)(5), finding that it conflicts with INA’s provisions in section 212(a)(2)(A)(i) governing inadmissibility based on conviction or admission of certain crimes, which do not include an exception or waiver to that inadmissibility for applicants who receive a pardon. … the [INA] is clear that a pardon does not make an otherwise inadmissible noncitizen admissible, even if a pardon can save a resident noncitizen from being removed … and where agency regulations conflict with statutory text, statutory text wins out every time. We simply cannot square [22 CFR 40.21(a)(5)] with the text and structure of the INA as it was amended in 1990. Wojciechowicz v. Garland, 77 F.4th 511, 514, 518 (7th Cir. 2023) (internal citations and parentheticals omitted). The Department agrees with the Seventh Circuit’s opinion in Wojciechowicz as it applies to gubernatorial pardons and finds that the court’s analysis regarding the lack of underlying authority in the INA giving effect to such pardons also extends to the Department’s regulation at 22 CFR 40.22(c) regarding ineligibility for multiple criminal convictions."