Judges: DUANE WOODARD, Attorney General
Filed Date: 12/23/1983
Status: Precedential
Modified Date: 7/5/2016
Honorable Richard D. Lamm Governor 136 State Capitol Building Denver, Colorado 80203
Dear Governor Lamm:
This is in response to an August 8, 1983 letter which inquired whether or not the Governor could grant pardons to foreign nationals conditioned upon such individuals permanently leaving the United States.
QUESTIONS PRESENTED AND CONCLUSIONS
Your letter presents the following questions:
1. Does the power to pardon include the power to pardon conditionally?
My conclusion is "yes."
2. Is permanent removal of a foreign national from the United States a permissible condition?
My conclusion is "no." The State of Colorado may not unilaterally exclude a foreign national from the United States.
ANALYSIS
1. The Governor's power to grant pardons is established by article IV, section 7 of the state constitution. While Colorado provides neither statutory nor constitutional authority specifically sanctioning conditional pardons, the power to pardon unconditionally necessarily includes the power to pardon conditionally. E.g., Fleenor v. Hammond,
2. Generally the conditions of a pardon may consist of any terms which are not illegal, immoral, or impossible to perform.E.g., Kavalin v. White, supra. A condition that a convict remain outside the territory of the pardoning authority is valid. Kavalin v. White,supra; In re Hawkins,
Extensive federal legislation has been enacted concerning aliens, naturalization, immigration, and deportation. See
Mere agreement between a convicted foreign national and the Governor of Colorado regarding a conditional pardon could not, by itself, effect the convict's removal from the United States. Such a removal would necessitate arrangements with a foreign government which Colorado would have no authority to effect. Removal of a foreign national from the United States requires approval of both federal authorities and the government of the country to which he would be removed. See
On the basis of the foregoing authorities, I conclude that Colorado may not unilaterally pardon an individual with the expectation that he will be removed from the United States.1
SUMMARY
The power to pardon absolutely includes the power to pardon conditionally. However, removal of a foreign national from the United States is not a permissible condition of a pardon because such a condition would intrude upon the federal government's exclusive authority to determine when foreign nationals should be removed and which countries should receive them.
Very truly yours,
DUANE WOODARD Attorney General
PARDONS EXECUTIVE BRANCH GOVERNOR FEDERAL PREEMPTION IMMIGRATION
Colo. Const. art.
GOVERNOR, OFFICE OF
The power to pardon absolutely includes the power to pardon conditionally. However, removal of a foreign national from the United States is not a permissible condition of a pardon because such a condition would intrude upon the federal government's exclusive authority to determine when foreign nationals should be removed and which countries should receive them.
Kavalin v. White , 44 F.2d 49 ( 1930 )
Fleenor v. Hammond , 116 F.2d 982 ( 1941 )
Skafte v. Rorex , 191 Colo. 399 ( 1976 )
Vanilla v. Moran , 298 N.Y. 796 ( 1949 )
United States Ex Rel. Hudak v. Uhl , 20 F. Supp. 928 ( 1937 )
Tayyari v. New Mexico State University , 495 F. Supp. 1365 ( 1980 )
United States v. Pink , 62 S. Ct. 552 ( 1942 )
Truax v. Raich , 36 S. Ct. 7 ( 1915 )
State, Ex Rel. v. Zangerle , 136 Ohio St. 371 ( 1940 )
Hines v. Davidowitz , 61 S. Ct. 399 ( 1941 )
United States v. Curtiss-Wright Export Corp. , 57 S. Ct. 216 ( 1936 )
De Canas v. Bica , 96 S. Ct. 933 ( 1976 )
Plyler v. Doe , 102 S. Ct. 2382 ( 1982 )
Toll v. Moreno , 102 S. Ct. 2977 ( 1982 )