Cite as 23 I&N Dec. 626 (BIA 2003) Interim Decision #3494 

In re Jung Tae SUH, Respondent 

File A73 685 634 - Atlanta 

Decided July 1, 2003 

U.S. Department of Justice

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) A presidential or gubernatorial pardon waives only the grounds of removal specifically

set forth in section 237(a)(2)(A)(v) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1227(a)(2)(A)(v) (2000), and no implicit waivers may be read into the statute. 

(2) The respondent’s pardon did not waive his removability as an alien convicted of a crime

of domestic violence or child abuse under section 237(a)(2)(E)(i) of the Act, because that 

section is not specifically included in section 237(a)(2)(A)(v). 

FOR RESPONDENT: Marshall L. Cohen, Esquire, Atlanta, Georgia 

FOR THE DEPARTMENT OF HOMELAND SECURITY:1 Molly S. Frazer, Assistant 

District Counsel 

BEFORE: Board Panel: HOLMES, Acting Vice Chairman; HURWITZ and MILLER, Board 

Members. 

HOLMES, Acting Vice Chairman: 

This case was last before us on August 31, 2001, when we dismissed the 

respondent’s appeal. We found that the respondent was no longer removable 

as an aggravated felon under section 237(a)(2)(A)(iii) of the Immigration and 

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), because his conviction 

for sexual battery of a minor had been pardoned by the state of Georgia. 

However, we concluded that the pardon did not waive his removability as an 

alien convicted of a crime of domestic violence or child abuse under section 

237(a)(2)(E)(i) of the Act. 

The case is now before us on remand from the May 14, 2002, order of the 

United States Court of Appeals for the Eleventh Circuit. In its order, the 

court granted the Government’s motion to remand. The Government sought 

a remand for the Board to consider “whether a full and unconditional 

presidential or gubernatorial pardon could implicitly remove the immigration 

We note that the functions of the Immigration and Naturalization Service have been 

transferred to the Department of Homeland Security pursuant to the Homeland Security Act 

of 2002, Pub. L. No. 107-296, 116 Stat. 2135. 

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Cite as 23 I&N Dec. 626 (BIA 2003) Interim Decision #3494 

consequences of a crime.” Pursuant to our request, both parties filed briefs 

on this issue following the court remand. 

Section 237(a)(2)(A)(v) of the Act specifies the effect of a presidential or 

gubernatorial pardon on certain grounds of removability. It states that 

“[c]lauses (i), (ii), (iii), and (iv)” of section 237(a)(2)(A) “shall not apply” 

where such a pardon has been granted. It thereby provides for an automatic 

waiver of removability where a pardon has been granted for (i) crimes of 

moral turpitude, (ii) multiple criminal convictions, (iii) aggravated felonies, 

and (iv) certain high speed flight convictions. There is no comparable 

provision regarding pardons that would cover convictions for other offenses 

that render an alien removable, such as acts of domestic violence or child 

abuse pursuant to section 237(a)(2)(E)(i), under which the respondent was 

charged. Other removable offenses, such as controlled substance violations 

under section 237(a)(2)(B), certain firearm offenses under section 

237(a)(2)(C), and violations of protection orders under section 

237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of section 

237(a)(2)(A)(v) of the Act. 

The respondent points out that his sexual battery conviction, which was 

pardoned, is the only basis for both charges of removability brought against 

him. He argues that it is illogical and irrational to say that this one offense 

“is both qualified and unqualified for a pardon waiver.” He also asserts that 

the law should be interpreted to allow pardons to waive minor criminal 

offenses, as it clearly provides a waiver for very serious offenses that have 

been pardoned. Finally, the respondent contends that in adding the new 

removal ground for crimes of domestic violence and child abuse in 1996, 

Congress did not intend to eliminate waivers based on pardons for such 

crimes. 

The Department of Homeland Security (“DHS”), formerly the Immigration 

and Naturalization Service, argues that section 237(a)(2)(A)(v) of the Act 

clearly states what offenses may be waived for immigration purposes when 

a pardon has been granted, and that no further “implicit” waivers should be 

read into the statute. The DHS points out that when Congress added the 

domestic violence and child abuse provisions to the Act with the passage of 

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), it did not 

provide for a waiver of those offenses upon the granting of a pardon. IIRIRA 

§ 350(a), 110 Stat. at 3009-640. Yet Congress did add a criminal offense to 

the list of those that could be waived following a pardon. Specifically, 

Congress included conviction for a high speed flight offense as a ground for 

removal and also provided that this offense could be waived, if pardoned. 

Sections 237(a)(2)(A)(iv), (v) of the Act. 

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We agree with the DHS that the respondent’s pardon does not waive his 

removability under section 237(a)(2)(E)(i) of the Act. The plain language of 

the statute clearly states which grounds of removal are waived if a pardon is 

granted, and the domestic violence and child abuse offenses are not among 

those enumerated. Where the plain language of the statute is clear, we will 

give effect to that language. See, e.g., Matter of Rojas, 23 I&N Dec. 117 

(BIA 2001). Further, as noted above, when Congress enacted the IIRIRA, it 

added one new offense, high speed flight, to the list of crimes that may be 

waived by a pardon, but it did not include the new domestic violence and 

child abuse offenses in that list. Where such a provision is included in one 

section but not in another, it is presumed that Congress acted intentionally and 

purposefully. See Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 

1999). 

The respondent argues that finding no “implicit” waiver of removability 

where a pardon has been granted can potentially lead to results that seem 

illogical or unfair. However, we find no legally supportable basis for 

inferring that a waiver is available where the statute so clearly states which 

removal grounds may be waived. The domestic violence and child abuse 

provisions are not waived by a pardon under the statute as presently enacted 

by Congress. We therefore find that no actual or implied waiver is available 

to the respondent with regard to his removability under section 237(a)(2)(E)(i) 

of the Act. Accordingly, we again find that the respondent is removable 

under section 237(a)(2)(E)(i) and will dismiss his appeal. 

ORDER: The respondent’s appeal from the Immigration Judge’s decision 

finding him removable under section 237(a)(2)(E)(i) of the Act is dismissed. 

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