Matter of Cardenas-Abreu, 24 I. & N. Dec. 795 (BIA 2009) (pending late-reinstated appeal of a criminal conviction, filed pursuant New York Criminal Procedure Law 460.30, does not undermine the finality of the conviction for immigration purposes).



NOTE: Several Boardmembers wrote separate opinions to address an outstanding question that the majority opinion explicitly avoided deciding: Does the IIRIRA definition of conviction found at INA 101(a)(48)(A) require finality to serve as the basis for removal? This issue is being considered by federal courts and has enormous implications for immigrants facing removal because of criminal convictions. For its part, the majority suggested that finality is required:



The legislative history of the IIRIRA accompanying the adoption of the definition of a "conviction" gave no indication of an intent to disturb this principle that an alien must waive or exhaust his direct appeal rights to have a final conviction. With this backdrop regarding the broad context of this issue and the statute, a forceful argument can be made that Congress intended to preserve the long-standing requirement of finality for direct appeals as of right in immigration law.



Matter of Cardenas-Abreu, 24 I. & N. Dec. at 798 (internal citations omitted).
Board Member Greer, in a lengthy dissenting opinion joined by Board Members Neal, Miller, Hess, Adkins-Blanch, and Wendtland, argued that INA 101(a)(48)(A) requires that a conviction must be final if it is to be used to remove a noncitizen from the country. Matter of Cardenas-Abreu, 24 I. & N. Dec. at 811 (Greer, dissenting). Similarly, in a concurring opinion, Board Member Grant explained "that the 'finality' requirement does still apply to cases where a direct appeal is pending or direct appeal rights have not been exhausted." Matter of Cardenas-Abreu, 24 I. & N. Dec. at 802 (Grant, concurring). In contrast, Board Member Pauley, joined by Board Member Cole, explained at length that INA 101(a)(48)(A) "contains no finality requirement." Matter of Cardenas-Abreu, 24 I. & N. Dec. at 810 (Pauley, concurring).