No. 18-1823

RICHARD MARVIN THOMPSON,

Petitioner,

v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Thompson, and Barron, Circuit Judges.

Gregory Romanovsky, with whom Romanovsky Law Offices was on brief, for petitioner. William M. Tong, Attorney General of Connecticut, with whom Jane Rosenberg, Assistant Attorney General, and Clare Kindall, Solicitor General, were on brief, as amicus curiae for the State of Connecticut. Trina Realmuto, Kristin Macleod-Ball, Emma Winger, and American Immigration Council, as amicus curiae for the American Immigration Council. Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Keith I. McManus, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. May 21, 2020

-2- TORRUELLA, Circuit Judge. Petitioner Richard Marvin Thompson ("Thompson") appeals the Board of Immigration Appeals' ("BIA") denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2) (A)(vi) (the "Pardon Waiver Clause"), because a pardon issued by the Connecticut Board of Pardons and Paroles is "not effective for purposes of establishing entitlement to" a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.

I.

Thompson is a citizen of Jamaica. In 1997, at the age of fourteen, he was admitted to the United States as a lawful permanent resident. When he was seventeen years old, Thompson was arrested and charged with second-degree assault, a felony in violation of Connecticut General Statute § 53a-60, to which he pleaded guilty in Connecticut state court in 2001. He received a

-3- suspended sentence and three years' probation. Without incident, Thompson completed the terms of his probation, received his GED, and worked for over ten years as a commercial operator.

Based on his 2001 conviction, in March 2012, the United States Department of Homeland Security initiated removal proceedings against Thompson charging him as removable pursuant to: (1) 8 U.S.C. § 1227(a)(2)(A)(i), for having committed a crime of moral turpitude within five years after admission and for which a term of imprisonment of one year or more could be imposed; and (2) 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an aggravated felony. Prior to his deportation hearing, Thompson applied to the United States Citizenship and Immigration Services ("USCIS") for derivative citizenship through his U.S.-citizen father. USCIS denied the application, and an Immigration Judge adopted the USCIS's reasoning, later affirmed by the BIA and this Court in Thompson v. Lynch, that Thompson did not derive citizenship from his father because Thompson's parents had never been legally married and were thus never legally separated a