from the United States District Court for the Western
District of Louisiana
JOLLY, SMITH, and GRAVES, Circuit Judges.
E.SMITH, CIRCUIT JUDGE
Thuy Nguyen appeals a summary judgment upholding the denial
of her application for naturalization because, under state
law, she had not received a "full and unconditional
executive pardon" for her conviction of an aggravated
felony. We find no error and affirm.
a lawful permanent resident, was convicted in 2004 of the
state crime of conspiracy to commit false or altered lottery
tickets and received a suspended sentence of two years'
imprisonment and two years' active probation. After
completing probation, she was granted an automatic
first-offender pardon. See La. Const. art. IV,
§ 5(E)(1); La. Rev. Stat. Ann. § 15:572(B)(1).
Nguyen applied for naturalization. The U.S. Citizenship and
Immigration Services ("USCIS") denied the
application and stated in its reaffirmance of the denial that
her conviction, an aggravated felony, permanently prevented
her from demonstrating good moral character and thus from
sought judicial review. The district court granted summary
judgment on the ground that Louisiana's automatic
first-offender pardon is not a "full and unconditional
executive pardon" as required by 8 C.F.R. § 316.10.
contests USCIS's interpretation of its regulation. She
asserts that the Louisiana statute implementing the
first-offender pardon demonstrates that this is a full pardon
such that it falls within the regulation. We disagree.
the requirements to become a naturalized citizen is to have
been a "person of good moral character" during the
proscribed five-year waiting period as a lawful permanent
resident. 8 U.S.C. § 1427(a). An applicant for
naturalization is permanently barred from demonstrating good
moral character if convicted of an aggravated felony, as
defined in 8 U.S.C. § 1101(a)(43), any time on or after
November 29, 1990. 8 U.S.C. § 1101(f)(8); 8 C.F.R.
§ 316.10-(b)(1)(ii). The regulations allow an exception
for those who have received a "full and unconditional
executive pardon." 8 C.F.R. § 316.10(c)(2)(i).
constitution provides for two different sorts of pardon. The
first is a discretionary pardon or commutation issued by the
governor. La. Const. art. IV, § 5(E)(1). The second is a
pardon for first-time offenders issued "automatically
upon completion of his sentence, without a recommendation of
the Board of Pardons and without action by the
governor." Id. USCIS has interpreted the second
automatic first-offender pardon not to be a "full and
unconditional executive pardon." We need not consider
whether USCIS's interpretation is entitled to
Auer deference,  because its interpretation of "full
and unconditional executive pardon" is otherwise
persuasive. See Christopher v. SmithKline Beecham
Corp., 132 S.Ct. 2156, 2168-69 (2012).
distinguishes between the effects of its two types of
pardons. A gubernatorial pardon "precludes the use of a
pardoned offense to enhance punishment" and restores the
individual to "a status of innocence." State v.
Adams, 355 So.2d 917, 921-22 (La. 1978) (internal
quotation marks omitted). An automatic first offender pardon
does not restore "a status of innocence" and,
accordingly, "does not preclude consideration of a first
felony conviction in adjudicating a person as a habitual
offender." Id. at 922.
urges that there is no such distinction because the Louisiana
statute implementing these pardons does not distinguish
between them for purposes of considering pardoned offenses
under habitual-offender statutes. The implementing statute
states that "any person receiving a pardon under the
provisions of [§ 5(E)(1)] and this Section may be
charged and punished as a second or multiple offender as
provided in R.S. 15:529.1." La. Rev. Stat. Ann. §
15:572(E). But the Louisiana Supreme Court has maintained the
distinction between gubernatorial and automatic
first-offender pardons in this context. See Touchet v.
Broussard, 31 So.3d 986, 993-94 (La. 2010). Given that
Louisiana does not consider the automatic first-offender
pardon to restore "a status of ...