No. 18-1823
____________________________________________
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
RICHARD MARVIN THOMPSON,
Petitioner
v.
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent
_____________________
ON REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
_
BRIEF OF THE STATE OF CONNECTICUT AS AMICUS
CURIAE IN SUPPORT OF THE PETITIONER RICHARD
MARVIN THOMPSON
_
WILLIAM TONG
Attorney General of Connecticut
CLARE KINDALL
Solicitor General
JANE ROSENBERG
Assistant Attorney General
Connecticut Attorney General's
Office
55 Elm Street
P.O. Box 120

 Hartford, CT 06141-0120
Ph: 860-808-5020
Fax: 860-808-5347
Email: jane.rosenberg@ct.gov
Counsel for Amicus Curiae
State of Connecticut

 TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES…………………………………………..

ii

IDENTITY AND INTEREST OF AMICUS CURIAE……………..

1

SUMMARY OF ARGUMENT…………………………………………

4

ARGUMENT……………………………………………………………..

6

I.

UNDER CONNECTICUT'S PARDON SYSTEM,
MR. THOMPSON'S PARDON IS AN
EXECUTIVE PARDON THAT SATISFIES THE
REQUIREMENTS OF THE PARDON WAIVER
CLAUSE………………………………………………………..

6

A. The Pardon Waiver Clause Applies To Pardons
That Are Executive In Nature, Regardless Of
Whether They Are Granted By The Governor…………

7

B. Connecticut's Pardon System Is Executive
In Nature…………………………………………………….

15

ICE AND THE BIA'S MISCONSTRUCTION OF
CONNECTICUT'S PARDONING SCHEME
SERIOUSLY PREJUDICES CONNECTICUT
RESIDENTS' CONSTITUTIONAL RIGHT TO
EQUAL PROTECTION OF THE LAW……………………

21

ICE AND THE BIA'S REFUSAL TO TREAT
CONNECTICUT'S PARDONS AS SUFFICIENT
TO SATISFY THE PARDON WAIVER CLAUSE
THREATENS CONNECTICUT'S SOVEREIGN
RIGHTS………………………………………………………..

24

CONCLUSION………………………………………………………….

28

II.

III.

i

 TABLE OF AUTHORITIES
CASES

PAGE

Dumschat v. Board of Pardons, 452 U.S. 458 (1981)…………

16-18

Ex parte Wells, 59 U.S. 307 (1955)………………………………

25

Gregory v. Ashcroft, 501 U.S. 452 (1991)……………………….

26

Hodel v. Virginia Surface Mining and Reclamation
Assoc., Inc., 452 U.S. 264 (1981)…………………………..

15

In re Pervez Pasha, 2011 WL 891881 (BIA 2011)
(unpublished opinion)……………………………………….

14

In re Peter G. Balogun, 2004 WL 2374920 (BIA 2004)
(unpublished opinion)……………………………………….

14

Matter of C-R-, 8 I&N Dec. 59, 1958 WL 9870
(BIA 1958), overruled on other grounds,
In re Eslamizar, 23 I&N Dec. 684, 2004
WL 2397569 (BIA 2004)…………………………………….

11, 20

Matter of D-, 7 I&N Dec. 476, 1957 WL 10553 (BIA 1957)…

12, 20

Matter of G--, 9 I&N Dec. 159, 1960 WL 12078
(BIA 1960)……………………………………………………

10

Matter of K, 9 I&N Dec. 336, 1961 WL 12170 (BIA 1961)……

12, 20

Matter of Nolan, 19 I&N Dec. 539, 1988 WL 235439
(BIA 1988)………………………………………………… 9, 10, 11, 16
Matter of R--, 5 I&N Dec. 612, 1954 WL 7930
(BIA 1954)…………………………………………………….

10

Matter of T-, 6 I&N Dec. 214, 1954 WL 7847 (BIA 1954)…….

12, 20

ii

 Matter of Tajer, 15 I&N Dec 125, 1974 WL 30015
(BIA 1974)……………………………………………………. 10, 11, 20
McLaughlin v. Bronson, 206 Conn. 267, 537 A.2d 1004
(Conn. 1988)…………………………………………………..

16, 17

New York v. United States, 505 U.S. 144 (1992)……………….

26

Northwest Austin Mun. Utility Dist. No. One v. Holder,
557 U.S. 193 (2009)………………………………………….

27

Palka v. Walker, 124 Conn. 121, 198 A. 265 (Conn. 1938)…….

16

Perkins v. U.S. ex rel. Malesevic,
99 F.2d 255 (3rd Cir. 1938)………………………………….

8

Printz v. United States, 521 U.S. 898 (1997)……………………

25

Shelby County v. Holder, 570 U.S. 529 (2013)………………….

26, 27

United States ex rel. Malesevic v. Perkins,
17 F. Supp. 851 (W.D. Pa. 1936)…………………………..

8

United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833)…………..

16, 25

United States v. Windsor, 570 U.S. 744 (2013)…………………

21

Wayzaro Yashimabet Walton v. Barr, No. 19-789
(2nd Cir.) (appeal pending)…………………………………

24

CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES
U.S. Const. amend X………………………………………………

25

8 U.S.C. § 155 (1917)……………………………………………….

7

8 U.S.C. § 1227(a)(2)(A)(vi)………………………………………..

2, 6

iii

 Ala. Code §§ 15-22-20 et seq……………………………………….

13

Alaska Stat. § 33.20.080……………………………………………

13

Ariz. Rev. Stat. § 31-402(A)…………………………………………

13

Conn. Gen. Stat. § 54-124a(a)(1)…………………………………..

16

Conn. Gen. Stat. § 54-124a(e)…………………………………..

19

Conn. Gen. Stat. § 54-130a………………………………………

16, 17

Conn. Gen. Stat. § 54-130d(a)-(b)………………………………..

19

Conn. Gen. Stat. § 54-142a(e)(3)…………………………………

2, 8

Federal Rule of Appellate Procedure 29(a)(2)………………………….

1

Fla. Stat. ch. 940.01…………………………………………………

13

Ga. Code Ann. § 42-9-2………………………………………………

13

Idaho Code § 20-210…………………………………………………

13

S.C. Code Ann. § 24-21-10………………………………………….

13

Utah Code Ann. § 77-27-2………………………………………….

13

OTHER AUTHORITIES
Albert W. Alschuler, Bill Clinton’s Parting Pardon Party,
100 J. Crim. L. & Criminology 1131, 1168 (2010)………………

23

Connecticut Board of Pardons and Paroles, Absolute
Pardon Application (Nov. 2017), https://portal.ct.gov//media/BOPP/Legacy-Files/2018CTPardonapplication
pdf.pdf?la=en…………………………………………………………

18, 19

iv

 Richard Fausset, Pardons Could Haunt Barbour,
L.A. Times, Jan. 13, 2012……………………………………

23

Mindy Fetterman, Move Is on to Make End-of-Year Pardons
Less Random, Pew Charitable Trusts, (Jan. 6, 2016),
https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2016/01/06/move-is-on-to-makeend-of-year-pardons-less-random………………………………….

23

Carlton J. Giles, The Pardon Process, Connecticut
Board of Pardons and Paroles (2018), https://portal.ct.gov//media/BOPP/LegacyFiles/2118FINALPardonsEligibiltyNoticepdf.pdf?la=en.……

17, 19, 20

Restoration of Rights Project, Characteristics of Pardon
Authorities, (Dec. 2018), https://ccresourcecenter.org/
state-restoration-profiles/50-statecomparisoncharacteristics-of-pardon-authorities/…………
S. Rep. No. 1515 (81st Cong., 2d Sess. 1950)…………………….

v

13
9

 IDENTITY AND INTEREST OF THE AMICUS CURIAE
The amicus curiae State of Connecticut, by and through its
Attorney General, respectfully submits this brief pursuant to Federal
Rule of Appellate Procedure 29(a)(2) in support of the petitionerappellant Richard Marvin Thompson and reversal of the decision of the
Board of Immigration Appeals (BIA).
The State of Connecticut has a vital interest in this case, which
directly impacts the State’s sovereign power to issue pardons for the
commission of crimes; the State's authority, protected by the Tenth
Amendment and by the constitutional principle of equal sovereignty, to
determine the manner in which it will structure and exercise its
sovereign pardoning power; and State residents' Fifth Amendment right
to have the federal government honor Connecticut's full and
unconditional pardons to the same extent that it honors functionallyidentical pardons issued by other states.
These critically-important issues of federalism, comity, and
constitutional justice arise from the threatened deportation of
Petitioner Richard Marvin Thompson, who was admitted to the United
States as a lawful permanent resident over twenty-two years ago.

1

 Immigration and Customs Enforcement (ICE) seeks to deport Mr.
Thompson, arguing that he forfeited his legal status by virtue of a crime
he committed in 2001 at the age of eighteen.
But under Connecticut law, Mr. Thompson has not been convicted
of any crime. Connecticut's Board of Pardons and Paroles granted him a
"full, complete, absolute, and unconditional" pardon on December 13,
2017, which has the legal effect of erasing his criminal record and even
the fact of any arrest. Conn. Gen. Stat. § 54-142a(e)(3). Because of that
pardon, he is entitled to a waiver from deportation under 8 U.S.C. §
1227(a)(2)(A)(vi) (the "Pardon Waiver Clause").
In seeking to deport Mr. Thompson, ICE and the BIA are refusing
to honor Connecticut's full and unconditional pardon. Instead, they take
the position that, merely because Mr. Thompson’s pardon was granted
by a gubernatorially-appointed board rather than by the Governor
himself, the pardon is not a "full and unconditional pardon" issued "by
the Governor of any of the several States" and thus does not comport
with the Pardon Waiver Clause.
ICE and the BIA's incorrect and unconstitutional invalidation of a
critical intended effect of Connecticut's pardon system, while honoring

2

 identical pardons issued by other states, deeply prejudices Mr.
Thompson's Fifth Amendment equal protection rights and those of all
other similarly-situated Connecticut residents.
Connecticut has a compelling interest in ensuring that the federal
government does not treat its immigrant residents differently and
worse from those of other states. More than one in seven Connecticut
residents – well over 500,000 people – is an immigrant, while another
one in eight is a native-born U.S. citizen with at least one immigrant
parent.

These

residents

are

vital

members

of

Connecticut's

communities, its workforce, and its families. ICE and the BIA would
deny those Connecticut residents the full benefits to which they are
entitled under federal law, threatening the integrity of their families,
the security of their jobs, and even their physical safety. The State of
Connecticut seeks to be heard on behalf of those residents, their
families, and our entire state-wide community that benefits so greatly
from their presence.
Connecticut also has a compelling sovereign interest in the
enforcement of its laws and in ensuring that the federal government
accords those laws the respect to which they are entitled under our

3

 federal system. ICE and the BIA's position damages federal-state
comity by disrespecting Connecticut's prerogative to determine the
proper interpretation of its own laws and threatens to violate state
sovereignty under the Tenth Amendment by effectively mandating that
Connecticut's legislature enact, and Connecticut's executive administer,
a specific Congressionally-mandated pardons scheme. Given these
significant and vital interests in the outcome of this appeal, Connecticut
urges this Court to reverse the BIA's decision.
SUMMARY OF ARGUMENT
The full and unconditional pardon granted to Mr. Thompson by
Connecticut's Board of Pardons and Paroles comports with the
requirements of the Pardon Waiver Clause. By refusing to respect that
pardon, ICE and the BIA have misconstrued Congressional intent and
deviated, without justification, from past BIA interpretations of the
Pardon Waiver Clause. Their disregard for Connecticut pardons
contrasts sharply and impermissibly with the respect that they accord
the five other states that, like Connecticut, exercise their sovereign
pardon power through a gubernatorially-appointed board.

4

 Connecticut's Board of Pardons and Paroles is the supreme and
sole pardoning authority for the State of Connecticut. Delegated that
authority by statute, the Board is an executive branch agency whose
members and chairperson are appointed by the Governor. Effectively
standing in the shoes of the Governor, the Board exercises full
discretion to grant or deny pardons based on a case-by-case assessment
of the facts and circumstances of each applicant. This individualized,
executive pardon is functionally identical to pardons granted by other
states and respected by the BIA. And Connecticut's pardons are
categorically distinct from the generic legislative pardon that the
Pardon Waiver Clause sought to exclude.
The BIA and ICE's treatment of Mr. Thompson's pardon not only
deviates from their past interpretation and application of the Pardon
Waiver Clause, but also threatens Mr. Thompson's right to equal
protection

and

disrespects

Connecticut's

fundamental

sovereign

authority to structure its government and exercise its pardoning power.
Because

the

BIA

and

ICE's

incorrect

and

unconstitutional

interpretation of the requirements of the Pardon Waiver Clause is
inconsistent with Congress' intent, and deeply prejudices Mr. Thompson

5

 and Connecticut residents like him, the BIA's decision should be
reversed.
ARGUMENT
I.

UNDER CONNECTICUT’S PARDON SYSTEM, MR.
THOMPSON’S PARDON IS AN EXECUTIVE PARDON
THAT SATISFIES THE REQUIREMENTS OF THE
PARDON WAIVER CLAUSE.
The Pardon Waiver Clause of the Immigration and Nationality

Act, 8 U.S.C. § 1227(a)(2)(A)(vi), provides that a non-citizen who would
otherwise be subject to deportation for conviction of an enumerated
offense is entitled to a waiver of deportation if he or she “has been
granted a full and unconditional pardon by the President of the United
States or by the Governor of any of the several States.” In concluding
the Connecticut Board of Pardons and Paroles' (the "Board") full and
unconditional pardon of Mr. Thompson does not satisfy this Clause
because it purportedly constitutes a legislative, rather than an
executive pardon, the Board of Immigration Appeals ("BIA") and ICE
have fundamentally misconstrued the intent of the Pardon Waiver
Clause and the nature of Connecticut's pardoning system.

6

 A.

The Pardon Waiver Clause Applies To Pardons That
Are Executive In Nature, Regardless Of Whether They
Are Granted By The Governor.

The Pardon Waiver Clause does not insist that a specific state
executive-branch official sign a state pardon. That elevation of form
over substance would interfere impermissibly with state sovereignty.
Instead, Congress intended by enacting the Clause to ensure that
generic legislative pardons, granted automatically by operation of law
when a sentence has been served, do not protect against deportation. In
place of these legislative pardons, Congress intended for the Clause to
extend waiver benefits to the recipients of “executive” pardons –
pardons

that

are

characterized

by

executive

discretion

and

individualized consideration of each applicant’s situation, even if issued
by a state pardoning authority other than the Governor.
That Congress' concern was directed at automatic legislative
pardons is evident from the history of the Immigration and Nationality
Act and decisions interpreting it. Prior to 1952, Section 19 of the
Immigration Act of 1917 stated that provisions requiring the
deportation of aliens convicted of crimes involving moral turpitude
would "not apply to one who has been pardoned." 8 U.S.C. § 155 (1917).

7

 Because this language was not qualified in any way, it barred
deportation regardless of the nature of the pardon. Thus, in Perkins v.
U.S. ex rel. Malesevic, 99 F.2d 255 (3rd Cir. 1938), the Third Circuit held
that a non-citizen who was convicted of a crime of moral turpitude, but
pardoned automatically under Pennsylvania law because he had served
his time, was not subject to deportation. As the district court noted, "[i]f
the pardon granted by [the Pennsylvania statute] was not in [the]
actual contemplation of Congress, it at least comes within the wording
of the federal statute; and, in such case, . . . it is not the province of this
court to read into it a limitation not plainly expressed." U.S. ex rel.
Malesevic v. Perkins, 17 F. Supp. 851, 853 (D. Pa. 1936).
In adopting the Immigration and Nationality Act in 1952 and
adding language to the Pardon Waiver Clause requiring a full and
unconditional pardon by the President of the United States or the
governor of any of the states, Congress was fully aware of statutes such
as the Pennsylvania statute at issue in Perkins. As the Senate Judiciary
Committee explained in reporting on “deportation problems” at the
time, “there exist so-called legislative pardons under which an alien is

8

 pardoned by operation of law in several States after completion of his
sentence." S. Rep. No. 1515, at 637 (81st Cong., 2d Sess. 1950).
Subsequent BIA decisions emphasize that Congress’ concern in
requiring that pardons be granted by the President or a state’s governor
was specifically to eliminate these automatic legislative pardons as a
basis for avoiding deportation. For example, in In the Matter of R--, 5
I&N Dec. 612 (BIA 1954), the BIA held that after the adoption of the
INA, the same Pennsylvania pardon statute that had been the subject
of the Perkins case no longer satisfied the requirements of the Pardon
Waiver Clause. As the BIA explained, “[b]y limiting the benefit [of the
Pardon Waiver Clause] to presidential and gubernatorial pardons only,
Congress has manifested an express intention to grant exemptions from
deportation only to those aliens who have obtained an executive pardon.
We therefore conclude that a legislative pardon, such as that obtained
by the respondent [namely, an automatic pardon], is ineffective to
prevent deportation.” Id. at 619 (emphasis omitted, emphasis and
brackets added).
Similarly, in Matter of Nolan, 19 I&N Dec. 539, 543 (BIA 1988),
the BIA held that a pardon granted automatically by the Louisiana

9

 constitution to first time felons did not satisfy the Pardon Waiver
Clause. As the BIA explained, “[t]his type of pardon, although provided
for under a state constitution rather than by statute, is akin to the
legislative pardon which Congress clearly rejected when it enacted the
current pardon provision of the Act in 1952.” Id. at 544. As in Matter of
R--, 5 I&N Dec. 612 (BIA 1954), it was the automatic nature of the
pardon, regardless of whether it had been authorized by legislation or a
state constitution, that was the distinguishing feature of the
“legislative” pardons that Congress sought to eliminate from the scope
of the Pardon Waiver Clause.
In short, Congress’ intent was to ensure that only pardons that
were executive in nature – that is, characterized by executive discretion
and individualized consideration of a particular person’s situation, as
opposed to being automatically granted by blanket operation of law –
would satisfy the Pardon Waiver Clause. See Matter of Nolan, 19 I&N
Dec. 539 (BIA 1988); Matter of Tajer, 15 I&N Dec. 125, 126 (BIA 1974);
Matter of G-, 9 I&N Dec. 159, 163-164 (BIA 1960).
As the BIA has repeatedly recognized, such executive pardons are
not limited to those signed by the President or a governor. Because “the

10

 supreme pardoning power may rest with an executive or executive body
other than the President of the United States or the Governor of a
state,” Matter of Nolan, 19 I&N Dec. 539, 542 (BIA 1988), the BIA has
held that pardons granted by a wide range of authorities with supreme
pardoning power satisfy the Pardon Waiver Clause.
For example, in Matter of C-R-, 8 I&N Dec. 59, 61 (BIA 1958), the
Board held that an unconditional pardon issued by the mayor of a firstclass Nebraska city was an executive pardon that satisfied the Pardon
Waiver Clause because the state legislature had enacted legislation
delegating to first-class city mayors the supreme pardoning authority
over convictions for city ordinance violations. The fact that the power
had been delegated by legislation, as in the present case, rather than by
the state constitution, in no way altered the conclusion that the pardon
was executive in nature. What mattered was that Nebraska law
designated the mayor as the sole authority with discretionary power to
pardon the violation of a city ordinance.
Other BIA decisions have likewise interpreted the Pardon Waiver
Clause to include pardons granted by executive authorities other than
governors. See, e.g., Matter of Tajer, 15 I&N Dec. 125 (BIA 1974) and

11

 Matter of D-, 7 I&N Dec. 476 (BIA 1957) (recognizing pardons granted
by the Georgia State Board of Pardons and Paroles vested with
executive authority by the Georgia constitution); Matter of K-, 9 I&N
Dec. 336 (BIA 1961) (recognizing pardon granted by the U.S. High
Commissioner for Germany vested with authority by executive order);
and Matter of T-, 6 I&N Dec. 214 (BIA 1954) (recognizing pardon
granted by the Governor of the Territory of Hawaii vested with
authority by statute).
Until its sharp reversal in this case, then, the BIA had a long
history of properly interpreting and applying Congress’ intent to respect
all discretionary and individualized executive pardons – not just those
granted by state governors. And that proper approach continues to be
manifested today in the BIA’s respect for the wide variety of executive
pardons granted by states across the country – including by five other
states that, like Connecticut, vest their pardon power in an executivebranch board. In this context, the mistaken interpretation at issue here,
which uniquely prejudices the state of Connecticut and its residents,
seems all the more anomalous, puzzling, and unjustifiable.

12

 All 50 states have a mechanism for executive pardons. See
Restoration of Rights Project, Characteristics of Pardon Authorities,
(Dec.

2018)

(surveying

all

50

states’

pardon

systems),

https://ccresourcecenter.org/state-restoration-profiles/50-statecomparisoncharacteristics-of-pardon-authorities/. Of those, fully 47
have established an executive-branch board with at least some
influence in the pardon process. Id. In some states, the governor sits on
the board. See, e.g., Fla. Stat. ch. 940.01. In others, the governor must
consult with the board before issuing a pardon. See, e.g., Alaska Stat. §
33.20.080. In still others, the board serves as a gatekeeper, passing
recommendations to the governor. See, e.g., Ariz. Rev. Stat. § 31-402(A).
And in six states – Alabama, Connecticut, Georgia, Idaho, South
Carolina, and Utah – the governor appoints members of an executivebranch board, to which is fully delegated the pardon power of the
sovereign state in non-capital cases. See Ala. Code §§ 15-22-20 et seq.
(governor appoints an independent pardons board, which makes pardon
determinations without gubernatorial approval); Ga. Code Ann., § 42-92 (same); Idaho Code § 20-210 (same); S.C. Code Ann. § 24-21-10
(same); Utah Code Ann. § 77-27-2 (same).

13

 There is no indication in the historical record, in any of the BIA’s
decisions, or in any court decision, that Congress intended to – or,
constitutionally, is entitled to – pick and choose favorites from among
this wide variety of state executive pardon schemes. Indeed, even today,
the BIA and ICE appear to respect the pardons granted in all 49 other
states, regardless of the level of their governor’s engagement in
granting pardons – including the five other states where, like
Connecticut, the governor does not sign off on pardons. See, e.g., In re
Pervez Pasha, 2011 WL 891881 (BIA 2011) (unpublished opinion)
(recognizing pardon from Georgia's Board of Pardons as warranting
waiver of deportation); In re Peter G. Balogun, 2004 WL 2374920 (BIA
2004) (unpublished opinion) (accepting without question the proposition
that a pardon from the Alabama Board of Pardons and Paroles would
constitute a "full and unconditional" pardon under the Pardon Waiver
Clause).1

Neither the text of Immigration and Nationality Act nor any other source of
authority suggests a rational or valid distinction between state pardon schemes
based on whether the scheme derives from state constitutional or statutory
authority. The state authority in which a pardon scheme is rooted has no bearing on
its procedural fairness, its substantive accuracy, or its relationship to the executive
(and therefore individualized and discretionary)/legislative (and therefore generic
and automatic) distinction that is at the heart of the Pardon Waiver Clause. And, as
a core matter of federalism, it is not for the federal government to say how states

1

14

 As these decisions and the continued practices of the BIA and ICE
demonstrate, what matters in determining whether a pardon satisfies
the requirements of the Pardon Waiver Clause is not whether it was
signed by a state’s governor, but rather whether it was granted by an
official or entity vested with the state’s supreme pardoning power and
possessing unfettered discretion to exercise that authority on a case-bycase basis. Connecticut’s Board of Pardons and Parole is precisely that
type of entity.
B.

Connecticut’s Pardon System Is Executive In Nature.

Pardons issued by the Connecticut Board of Pardons and Paroles
are executive in nature and fall squarely within the scope of the Pardon
Waiver Clause.
Like every state in the country, Connecticut exercises its own
prerogative, protected by the Tenth Amendment, to determine its
structures of government, including its pardon system. See Hodel v.
Virginia Surface Min. and Reclamation Ass'n, Inc., 452 U.S. 264, 287
(1981) (describing the fundamental prerogative of “states as states” to
“structure integral operations in areas of traditional governmental
must make their laws. Connecticut’s first constitution predates the I.N.A. by more
than 300 years.

15

 functions”). Like the power to punish, the power to pardon is typical of,
and inherent in, each government's sovereignty. See United States v.
Wilson, 32 U.S. (7 Pet.) 150, 160–61 (1833). As the BIA has recognized,
“[w]hether a state opts to authorize the granting of a pardon, and by
what mechanism, for which offenses, and under what circumstances,
are matters resting within the sovereign decision-making powers of that
state.” Matter of Nolan, 19 I&N Dec. 539, 544 (BIA 1988).
Under Connecticut's chosen system, which has been in place since
1883, Palka v. Walker, 124 Conn. 121, 123, 198 A. 265, 266 (Conn.
1938), the state’s sovereign power to pardon is vested, through the
legislature, in the Board of Pardons and Paroles. McLaughlin v.
Bronson, 206 Conn. 267, 271, 537 A.2d 1004, 1006-07 (Conn. 1988);
Dumschat v. Board of Pardons, 452 U.S. 458, 463 (1981). The Board is
an executive branch agency, whose members and chairperson are
appointed by the Governor. See Conn. Gen. Stat. § 54-130a; Conn. Gen.
Stat. § 54-124a(a)(1) ("There shall be a Board of Pardons and Paroles
within the Department of Correction, for administrative purposes only.
… [T]he board shall consist of ten full-time and up to five part-time
members appointed by the Governor with the advice and consent of

16

 both houses of the General Assembly."). Transformed into an
autonomous executive agency in 1969, the Board effectively stands in
the executive's shoes to exercise the state's sovereign power to grant full
and unconditional pardons. No other official or entity in the state
possesses this sovereign authority to pardon. Conn. Gen. Stat. § 54130a.
Critically, unlike some other states, Connecticut has no provision for
legislative pardons that occur automatically as a matter of law. Instead,
Connecticut’s Board of Pardons and Paroles grants pardons, if at all,
only after extensive individualized consideration of the facts and
circumstances of each case and the merits of each applicant. See Carlton
J. Giles, The Pardon Process, Connecticut Board of Pardons and Paroles
(2018),https://portal.ct.gov/-/media/BOPP/LegacyFiles/2118FINALPardonsEligibiltyNoticepdf.pdf?la=en.
Connecticut’s pardon process not only requires an individualized
case-by-case assessment of each applicant, but also vests the Board
with “unfettered discretion” to grant or deny a pardon. McLaughlin v.
Bronson, 206 Conn. 267, 271, 537 A.2d 1004, 1006-07 (Conn. 1988);
Dumschat v. Board of Pardons, 452 U.S. 458, 466 (1981). Connecticut’s

17

 statutory scheme “imposes no definitions, no criteria and no mandates
giving rise to a duty to . . . grant a pardon, or creating a constitutional
entitlement to an exercise of clemency.” See id. The Board “can deny the
requested relief for any constitutionally permissible reason or for no
reason at all.” Dumschat,, 452 U.S. at 467 (Brennan, J. concurring). If
granted, an absolute pardon by the Board legally erases the applicant’s
criminal record, including the fact of arrest. Conn. Gen. Stat. § 54142a(e)(3).
Connecticut’s pardon process, which Mr. Thompson successfully
completed, is built on nationally-accepted best practices and aligns with
procedures used in many other states across the country. The process
begins when an eligible applicant submits an exhaustive 21-page
written application calling for information on family; criminal history;
prior applications; educational history; employment; and history of
substance abuse and treatment. Connecticut Board of Pardons and
Paroles, Absolute Pardon Application (Nov. 2017), https://portal.ct.gov//media/BOPP/Legacy-Files/2018CTPardonapplicationpdf.pdf?la=en.
That application must be supplemented with supporting documents
including a state police criminal history report; police reports for arrests

18

 resulting in convictions within the last 10 years; probation status forms
for each period of probation served; reference questionnaires from three
references; and proof of employment. Id.
Written applications and supporting materials are screened by
Board staff to determine eligibility and suitability. See Carlton J. Giles,
The Pardon Process, Connecticut Board of Pardons and Paroles (2018),
https://portal.ct.gov/-/media/BOPP/LegacyFiles/2118FINALPardonsEligibiltyNoticepdf.pdf?la=en. The Board then
solicits victim input and, wherever appropriate, holds a hearing before a
three-member panel at which the victim – if they desire – and the
applicant have an opportunity to be physically present. Conn. Gen.
Stat. § 54-130d(a)-(b); Conn. Gen. Stat. § 54-124a(e). In determining
whether to grant a pardon, the Board considers all of the information
and factors before it, including, but not limited to, the severity of the
offense; the impact on the victim and the victim’s input; the applicant's
criminal history, and how much time has passed since the most recent
offense; whether the public interest is served by granting a pardon; the
applicant's accomplishments since their most recent offense; work
history; subsequent contact with the criminal justice system; character

19

 references; and community service. Carlton J. Giles, The Pardon
Process,

Connecticut

Board

of

Pardons

and

Paroles

(2018),

https://portal.ct.gov/-/media/BOPP/LegacyFiles/2118FINALPardonsEligibiltyNoticepdf.pdf?la=en.
This process vests an executive agency with exclusive sovereign
pardoning power for the State and grants the executive unfettered
discretion to decide whether to grant pardons on a case-by-case basis.
As such, this power is substantively no different from the pardoning
power granted to the mayor in Matter of C-R-, 8 I&N Dec. 59, 61 (BIA
1958), the Georgia State Board of Pardons and Paroles in Matter of
Tajer, 15 I&N Dec. 125 (BIA 1974), and Matter of D-, 7 I&N Dec. 476
(BIA 1957), the U.S. High Commissioner for Germany in Matter of K-, 9
I&N Dec. 336 (BIA 1961), and the Governor for the Territory of Hawaii
in Matter of T-, 6 I&N Dec. 214 (BIA 1954), which was found, in each
case, to satisfy the requirements of the Pardon Waiver Clause. There is
no meaningful distinction between Connecticut’s process and the
pardons processes that ICE and the BIA have approved, and continue to
approve, in states across the country – including states whose pardon
schemes mirror Connecticut’s. Accordingly, there is no principled basis

20

 for the BIA’s conclusion that the “full, complete, absolute and
unconditional pardon” that the Connecticut Board of Pardons and
Paroles has granted to Mr. Thompson does not meet the requirements
of the Pardon Waiver Clause.
II.

ICE
AND
THE
BIA'S
MISCONSTRUCTION
OF
CONNECTICUT’S PARDONING SCHEME SERIOUSLY
PREJUDICES
CONNECTICUT
RESIDENTS'
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF
THE LAW.
ICE

and

the

BIA's

erroneous

conclusion

that

full

and

unconditional pardons granted by the Connecticut Board of Pardons
and Paroles do not satisfy the requirements of the Pardon Waiver
Clause not only deviates from the BIA's past decisions and present
interpretation of other states’ laws, but also seriously prejudices the
constitutional rights of Mr. Thompson, and all of Connecticut's noncitizen residents, to equal protection of the law under the Fifth
Amendment of the Constitution.
The Fifth Amendment's due process clause prohibits the federal
government from denying equal protection of the laws to any U.S.
resident. U.S. v. Windsor, 570 U.S. 744, 774 (2013). But under ICE and
the BIA's fundamentally flawed interpretation, Connecticut's residents

21

 who have been granted pardons are singled out and treated differently
from similarly-situated residents of other states solely because the
supreme pardoning power in Connecticut is exercised by an executive
branch agency rather than by the Governor personally.
Notwithstanding that Connecticut's executive pardons are in all
substantive respects identical to other states' pardons that the BIA
deems sufficient to satisfy the Pardon Waiver Clause, ICE and the BIA
are refusing to honor Connecticut's pardons. In Mr. Thompson's case, it
is solely because Connecticut issued his pardon that he faces
deportation and separation from his family. Had New York or
Massachusetts – or, indeed, Alabama or Georgia, each of which also
vests its power in a Board – issued his pardon, based on laws that are
no more reliable or procedurally fair than Connecticut's but which
happen to provide for pardons issued by their respective governors, Mr.
Thompson would be exempt from deportation and at liberty to remain
in the United States.
The federal government has no legitimate interest in disparate
treatment of state residents based on whether their executive pardons
were granted by a governor or by a gubernatorially-appointed board. As

22

 a policy matter, there is every indication that pardon boards – precisely
because they are more insulated from politics – are more likely to grant
discretionary pardons on the basis of substantive merit rather than
based on the power and influence of applicants. See Mindy Fetterman,
Move Is on to Make End-of-Year Pardons Less Random, Pew Charitable
Trusts, (Jan. 6, 2016), https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2016/01/06/move-is-on-to-make-end-of-yearpardons-less-random (noting the importance of a “fair and structured
process” over a “random” political calculation). The federal government
has no basis for disfavoring rational and structured systems and
preferring systems that are more susceptible to abuses like granting
Christmas pardons to the politically favored, and which as a result risk
damaging public perceptions of the entire justice system’s fairness and
impartiality. See, e.g., Albert W. Alschuler, Bill Clinton’s Parting
Pardon Party, 100 J. Crim. L. & Criminology 1131, 1168 (2010)
(decrying the use of the pardon power in ways that give the appearance
of selling justice); Richard Fausset, Pardons Could Haunt Barbour, L.A.
Times, Jan. 13, 2012, at A1 (describing controversy over Mississippi
governor’s use of Christmas pardons).

23

 Mr. Thompson is not alone in being subjected to unconstitutional
disparate treatment merely because he lives in Connecticut. ICE has
similarly

discriminated

against

other

Connecticut

residents,

disrespecting their Connecticut pardons and taking steps towards
immediate deportation or denial of re-entry because it does not deem
their pardons to be executive. See, e.g., Wayzaro Yashimabet Walton v.
Barr, No. 19-789 (2nd Circuit) (appeal pending). Yet when identicallysituated individuals across the state line in New York or Massachusetts
seek exemption from deportation pursuant to the Pardon Waiver
Clause, they face no similar barrier. And, tellingly, not all states that
vest their pardon power in appointed boards are treated similarly to
Connecticut. It appears, as noted supra, that the BIA and ICE respect
pardons granted by the five other states whose systems are similar to
Connecticut’s. Because such unjustifiably disparate treatment violates
the Fifth Amendment, the BIA's decision should be reversed.
III.

ICE AND THE BIA'S REFUSAL TO TREAT CONNECTICUT
PARDONS AS SUFFICIENT TO SATISFY THE PARDON
WAIVER
CLAUSE
THREATENS
CONNECTICUT'S
SOVEREIGN RIGHTS.
Reversal is further warranted because ICE and the BIA's refusal

to recognize the sufficiency of Connecticut's full and unconditional
24

 pardons under the Pardon Waiver Clause threatens Connecticut's equal
sovereignty and Tenth Amendment rights.
The Tenth Amendment provides that the "powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." U.S. Const.
amend. X. Although the States surrendered many of their powers to the
Federal Government when they adopted the Constitution, "they
retained 'a residuary and inviolable sovereignty.'" Printz v. United
States, 521 U.S. 898, 919 (1997) (citing The Federalist No. 39, at 245 (J.
Madison). That sovereignty includes the States' power to organize its
governmental structure, see, e.g., Printz, 521 U.S. at 909; Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991), and grant pardons. See, e.g., Ex
parte Wells, 59 U.S. 307 (1955); United States v. Wilson, 32 U.S. 150,
160-161 (1833). “Through the structure of its government, and the
character of those who exercise government authority, a State defines
itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
By designating the Board of Pardons and Paroles as the executive
entity authorized to grant pardons, Connecticut is exercising its
sovereign power. ICE and the BIA's reading of the Pardon Waiver

25

 Clause disrespects this power. It disrespects Connecticut's longestablished choice about where to situate and how to effectuate the
state's power to pardon. To categorically bar Pardon Waiver Clause
relief to all Connecticut residents pardoned by the state Board of
Pardons and Paroles is effectively to dictate how Connecticut's
legislature

must

establish

its

state

pardon

scheme

and

how

Connecticut's executive branch must exercise its power. Such a
mandate works a Tenth Amendment violation because the federal
government cannot dictate the content of legislation passed by a state
nor commandeer the state's executive officers, ordering a specific officer
to be the conduit for pardons. New York v. United States, 505 U.S. 144
(1992). This was not, and could not have been, Congress' intent when it
adopted the Pardon Waiver Clause.
ICE and the BIA’s reading do not just threaten Connecticut’s
sovereignty as a state under the Tenth Amendment: They also threaten
the principle of equal sovereignty among states. See Shelby County v.
Holder, 570 U.S. 529, 544 (2013) (“Not only do States retain sovereignty
under the Constitution, there is also a fundamental principle of equal
sovereignty” among the States.”) (internal quotation marks omitted). As

26

 the Supreme Court taught in Shelby County, the federal government
must make – at a minimum – a “showing” of “current need” if it intends
to impose disparate treatment among the states and their laws,
departing from the principle of “constitutional equality of the States”
that “is essential to the harmonious operation of the scheme upon which
the Republic was organized.” Id. at 542 (citing to Northwest Austin
Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).
Here, ICE and the BIA propose to treat Connecticut’s pardon
system and its residents who receive pardons differently from those of
any other state – even those states whose systems are structurally
identical to Connecticut’s – deviating in the process from a long history
of recognizing the authentic intent behind the Pardon Waiver Clause.
That sharp reversal is backed by no showing of any policy or other
justification for disparate treatment of Connecticut and its residents.
But Congress did not intend, by the Pardon Waiver Clause, to randomly
select winners and losers from among the states, and the Constitution
does not allow it.

27

 CONCLUSION
For all of the foregoing reasons, this Court should reverse the
BIA's decision denying Mr. Thompson's motion to open and refusing to
recognize that his Connecticut pardon is an executive pardon that fully
comports with the requirements of the Pardon Waiver Clause.
Respectfully submitted,
Amicus Curiae
State of Connecticut

WILLIAM TONG
ATTORNEY GENERAL FOR
CONNECTICUT
CLARE KINDALL
SOLICITOR GENERAL
By: /s/ Jane Rosenberg
Jane Rosenberg
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Tel: (860) 808-5020
Fax: (860) 808-5347
Email: jane.rosenberg@ct.gov

28

 CERTIFICATION OF COMPLIANCE WITH TYPE-VOLUME
LIMIT, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS
I hereby certify that this brief complies with the type-volume
limitations of Rule 32(a)(7)(B) of the Federal Rules of Appellate
Procedure in that it contains 5,032 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f). I further certify that this brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32 (a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word
in 14 point Century Schoolbook font.

/s/ Jane Rosenberg
Jane Rosenberg
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Tel: (860) 808-5020
Fax: (860) 808-5347
Email: jane.rosenberg@ct.gov
Dated: April 4, 2019

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 CERTIFICATION OF SERVICE
I hereby certify that on this 4th day of April, 2019, I caused the
foregoing brief to be filed electronically with the Clerk of the Court for
the United States Court of Appeals for the First Circuit by using the
appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

By: /s/ Jane Rosenberg
Jane Rosenberg
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Tel: (860) 808-5020
Fax: (860) 808-5347
Email: jane.rosenberg@ct.gov

30