AGO 84-7.

Case Date:April 24, 1984
Court:Colorado
 
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Colorado Attorney General Opinions 1984. AGO 84-7. April 24, 1984Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 84-7 AG Alpha No. EX AD AGAMQ Honorable Richard D. Lamm Governor 136 State Capitol Building Denver, CO 80203 RE: Conditional pardons intended to effect the deportation of foreign nationals convicted of felonies in ColoradoDear Governor Lamm: I write in response to your February 9, 1984 inquiry about your authority to conditionally pardon a foreign national subject to detainer for deportation by the United States government. QUESTION PRESENTED AND CONCLUSION You ask specifically: Can the Governor conditionally pardon a foreign national subject to detainer by the United States Immigration and Naturalization Service for deportation and provide that the pardon shall be revoked if the person pardoned illegally returns to the United States? My conclusion is "yes." ANALYSIS The Governor has the power to conditionally pardon individuals as long as the conditions imposed are not illegal, immoral, or impossible to perform. (See Attorney General's Opinion of December 23, 1983). A condition requiring a convicted foreign national to remove himself from the United States is neither immoral nor impossible to perform but is illegal because it fails to recognize the primacy of federal authority in this area (see Attorney General's Opinion of December 23, 1983). This obstacle is removed when pardons are conditioned upon deportation by the federal government and revoked upon a showing of an illegal return to the United States. Conditional pardons of this kind are consistent with federal deportation statutes. A convicted foreign national may not be physically deported as long as there is actual prison time to be served on his sentence. 8 U.S.C. 1252(h) (1970), e.g., Briscoe v. United States, 391 F.2d 984 (D.C. Cir. 1968); Daoust v. United States, 310 F.2d 82 (5th Cir. 1962). However, once released from confinement, a foreign national may be removed from the country despite the existence of post-release conditions which, if violated, could result in re-incarceration. 8 U.S.C. 1252(h) (1970) (fact that released convict remains subject to re-arrest or further confinement as a result of post-release conditions does not preclude deportation). See e.g., Lu Woy Hung v. Haff, 78...

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