Aggravated Felonies

A conviction must be final before it will trigger deportation,[306] and is not final if a direct appeal is pending or could still be timely filed.  During its pendency, a direct appeal of right (as opposed to a discretionary appeal)[307] prevents a conviction from being considered a final judgment of conviction, and thus it does not yet exist for immigration purposes.[308]  The immigration authorities cannot initiate deportation proceedings on the basis of a conviction that has not yet become final.  This rule also applies during the time an appeal can still be initiated, i.e., before the notice of appeal is due.  In federal criminal cases, the notice of appeal must be filed on or before the 10th day following entry of judgment.  State deadlines are sometimes more generous.  In California felony cases, for example, it must be filed within 60 days after sentence is imposed.

            For example, in Pino v. Landon,[309] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.  The court stated, “On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore held it could not support the deportation charge.

            In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal.[310]  This is not true in the Fifth or Seventh Circuits.[311]

The BIA has held that deferred adjudication dispositions constitute convictions, even though a direct appeal could be started in the event of a violation of the deferred adjudication program, followed by imposition of a formal judgment and sentence.[312]  These decisions, however, appear to limit their holdings concerning finality to the deferred adjudication context, and they have not been extended to invalidate direct appeal as a means of avoiding finality of conviction.

Direct appeal from the judgment involving only sentence or post-judgment issues does not destroy the finality of the conviction for immigration purposes, but this conclusion may be challenged in a petition for review.[313]

[306] Pino v. Landon, 349 U.S. 901 (1955); Zamora-Morel v. INS, 905 F.2d 833, 839 n.3 (5th Cir. 1990) (Texas deferred adjudication disposition held not to be a final conviction); Martinez-Montoya v. INS, 904 F.2d 1018, 1025 (5th Cir. 1990) (same); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (a person has not been convicted of a federal crime for purposes of deportation until a judgment has been entered and direct appeal has been exhausted or waived); Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR, 7 I. & N. Dec. 318, 322 (BIA 1956, AG 1957); Matter of O, 7 I. & N. Dec. 539, 541 (BIA 1957).  But see Moosa v. INS, 171 F.3d 994, 1008-1010 (5th Cir. 1999) (new IIRAIRA statutory definition of “conviction” eliminated finality requirement).

[307] Matter of Polanco, 20 I. & N. Dec. 894 (BIA Oct. 21, 1994) (noncitizen who has waived or exhausted the right to a direct appeal of a conviction is subject to deportation, and the potential for discretionary review on direct appeal will not prevent the conviction from being considered final for immigration purposes).

[308] Marino v. INS, 537 F.2d 686 (2d Cir. 1976) (conviction not considered final while direct appeal from conviction pending); Will v. INS, 447 F.2d 529, 532 (7th Cir. 1971) (conviction not final during appeal from denial of motion in arrest of judgment: “a final curtain must have been drawn in the criminal proceedings”); Matter of Jadusingh, No. A29 847 544 (BIA 1998) (guilty plea conviction on appeal not sufficiently final to permit underlying facts to be used to establish inadmissibility for reason to believe noncitizen had been a drug trafficker); Matter of Thomas, 21 I. & N. Dec. 20, 21 n.1 (BIA 1995); Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988); Matter of Espinoza, 15 I. & N. Dec. 328 (BIA 1975) (appeal from denial of motion to withdraw guilty plea).  Cf. Kabongo v. INS, 837 F.2d 753, 758 (6th Cir. 1988) (immigration judge’s reliance on conviction while appeal was pending was harmless error, since conviction had become final before BIA rendered its decision).  A former INS regulation provided that for a conviction to exist, all direct appeal rights must have been exhausted or waived, or the appeal period must have elapsed.  See 8 C.F.R. § 242(b) (1995) (defining conviction for purposes of the mandate to deport convicted noncitizens expeditiously, INA § 242(i), 8 U.S.C. § 1252(i) (1995)).  See also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc), separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement.

[309] Pino v. Landon, 349 U.S. 901 (1955) (per curiam).

[310] Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).

[311] See Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004)(possibly dictum).

[312] Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc).

[313] Matter of Chairz-Castaneda, 21 I. & N. Dec. 44 (BIA Apr. 28, 1995) (right to appeal such issues as whether a violation of probation has occurred or the sentence imposed upon entry of judgment was correct will not prevent a finding of a final conviction for immigration purposes; to disturb finality, issues on appeal must relate to the issue of “guilt or innocence of the original charge.”).  This decision contravenes authorities holding no conviction exists unless sentence has been imposed.  See § 3.32(A)(2), supra.