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Castillo v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

June 27, 2014

JOSE FERNANDO CASTILLO, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent

Page 1269

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A093-022-401.

For Jose Fernando Castillo, Petitioner: Jesus A. Nerio, Richard C. Wayne & Associates, PC, Atlanta, GA.

For U.S. Attorney General, Respondent: Jesse Matthew Bless, Anthony Cardozo Payne, David V. Bernal, Krystal Samuels, U.S. Department of Justice, Civil Division, Washington, DC; Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA.

Before MARCUS and EDMONDSON, Circuit Judges, and TREADWELL,[*] District Judge.

OPINION

Page 1270

MARCUS, Circuit Judge

This case of first impression concerns whether the Board of Immigration Appeals (" BIA" ) correctly found petitioner Jose Fernando Castillo removable as an aggravated felon, even though the Georgia State Board of Pardons and Paroles had earlier pardoned Castillo for the conviction that rendered him removable. On appeal, Castillo claims the BIA should have applied 8 U.S.C. § 1227(a)(2)(A)(vi), which waives the removability of a criminal alien who receives a " full and unconditional pardon." We disagree. Under the plain meaning of § 1227(a)(2)(A)(vi), a pardon is only " full" when it restores the totality of rights abrogated by the underlying conviction. Here, Castillo's pardon did not reinstate his Second Amendment right to keep and bear arms, a privilege he lost under Georgia law as a result of his conviction. Thus, Castillo did not receive a " full" pardon, and § 1227(a)(2)(A)(vi) does not apply. After thorough review, we deny Castillo's petition.

I.

The undisputed facts and procedural history are straightforward. Castillo, a native and citizen of the Dominican Republic, became a lawful permanent resident of the United States in 1990. On April 7, 1993, Castillo, then 27 years old, pled guilty to statutory rape, a felony violation of Ga. Code § 16-6-3(a). At the time of his guilty plea, the Georgia criminal statute provided:

A person commits the offense of statutory rape when he engages in sexual intercourse with any female under the age of 14 years and not his spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the female.

Ga. Code § 16-6-3(a) (1993).[1] The trial judge imposed a five-year prison sentence but allowed Castillo to serve it on probation.

In April 2012, after determining that Castillo was a " law-abiding citizen and . . . fully rehabilitated," the Georgia State Board of Pardons and Paroles -- the state's

Page 1271

highest pardoning authority -- granted Castillo's application for a pardon. In relevant ...


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