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            For example, in Pino v. Landon,[309] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.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.

CONVICTION - FINALITY - STATUTORY INTERPRETATION - CONGRESS DID NOT OVERRULE PRIOR CASE LAW BY SILENCE IN NEW LEGISLATION
E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it).

"Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).

"This rule is based on the theory that the legislature is familiar with the contemporaneous interpretation of a statute . . . . Therefore, it impliedly adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394 (1999).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGES United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), properly triggered 16-level sentence enhancement for illegal reentry after deportation since charging to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction).

NOTE: This decision appears to contradict the decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.").

The court based its reasoning on the following analysis:

In California, a guilty plea admits every element of the offense charged, People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981), including all accusations and factors comprising the charge contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) ("By pleading guilty as charged [to an information worded in the conjunctive, charging, "robbery by means of force and fear"], appellant necessarily admitted the force allegation and cannot now escape the consequences of that admission.") (emphasis added). Thus, "a plea of guilty means guilty as charged in the information, and by it all averments of fact are admitted.... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. " Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted).

Accordingly, by pleading guilty to counts one and two as worded, in the conjunctive, Garcia-Medina admitted to several offenses committed on at least two occasions. It is uncontested that most of these offenses qualify as drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not clarify his plea before the California trial court; instead, he admitted every offense listed in the charging document and cannot now escape the consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).

United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th Cir. Aug. 15, 2007).

BIA

CONVICTION - DIRECT APPEAL - LATE APPEAL - PENDING LATE DIRECT APPEAL DOES NOT DESTROY FINALITY OF CONVICTION
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).

CONVICTION - FINALITY - IIRAIRA STATUTORY DEFINITION OF CONVICTION DID NOT ALTER THE PRE-EXISTING FINALITY REQUIREMENT
Cf. Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("Furthermore, when Congress enacted section 350(a) of the IIRIRA in 1996, different variations of the "categorical" approach had been applied in immigration proceedings for more than 80 years, and we must presume that Congress was familiar with that fact when it made deportability under section 237(a)(2)(E)(i) depend on a "conviction." Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Had Congress wished to predicate deportability on an alien's actual conduct, it would have been a simple enough matter to have done so. Accordingly, we conclude that the respondent's removability as an alien convicted of a "crime of child abuse" must be established categorically.").

Second Circuit

POST CON RELIEF " CONVICTION " FINALITY " DIRECT APPEAL " PENDING APPEAL RENDERS A CONVICTION NONFINAL, SO IT CANNOT BE A BASIS FOR DEPORTATION IN IMMIGRATION PROCEEDINGS
Walcott v. Chertoff, 517 F.3d 149, 155 (2d Cir. 2008) (pendency of a direct appeal from a criminal conviction renders the conviction nonfinal and suspends an aliens deportability.)

CONVICTION - FINALITY - NEW DEFINITION ELIMINATED FINALITY REQUIREMENT
Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) ("IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute. See Abiodun v. Gonzales, 461 F.3d 1210, 1213 (10th Cir. 2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Moosa, 171 F.3d at 1009.") (dictum).

Lower Courts of Second Circuit

CONVICTION - DATE OF CONVICTION
Puello v. BCIS, 418 F.Supp.2d 436 (S.D.N.Y. Dec. 13, 2005) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

Third Circuit

CONVICTION - FINALITY - DIRECT APPELLATE REVIEW OF A CONVICTION MUST HAVE BEEN EXHAUSTED OR WAIVED BEFORE CONVICTION IS SUFFICIENTLY FINAL FOR REMOVAL PURPOSES
Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun.9, 2008)("[A] conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived." Matter of Ozkok, 19 I. & N. Dec. 546, 552 n. 7 (BIA 1988) (citing Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir.1975); Will v. INS, 447 F.2d 529 (7th Cir. 1971)), superceded by statute on other grounds. Here, petitioner's time to directly appeal his convictions had expired, and a petition for a writ of error coram nobis is not a direct appeal of, but rather a collateral attack on, a conviction. See United States v. Gross, 614 F.2d 365, 368 (3d Cir. 1980).").

Fifth Circuit

CONVICTION - FINALITY - FULL FAITH AND CREDIT ACT NOT VIOLATED BY SENTENCING COURT'S CONCLUSION STATE DEFERRED ADJUDICATION PROBATION DISPOSITION CONSTITUTES CONVICTION FOR PURPOSES OF ENHANCING FEDERAL SENTENCE UNDER 18
U.S.C. 841(b)(1)(A) United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (Texas guilty plea resulting in imposition of deferred adjudication probation constituted a "prior conviction" for purposes of sentence enhancement under 18 U.S.C. 841(b)(1)(A), rejecting claim that it did not constitute a final conviction under Texas law and the Full Faith and Credit Act; 28 U.S.C. 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime."), following United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) ("[T]he principles of federalism and comity embodied in the full faith and credit statute are not endangered when a sentencing court, not questioning the propriety of the state's determination in any way, interprets how to apply New York's youthful offender adjudications to a Guidelines analysis.") (internal citation and quotation marks omitted); United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991) ("[D]octrines such as Full Faith and Credit, ... and related jurisdictional principles, are inapplicable ... where the issue is the role of prior state convictions in a federal sentencing scheme."); United States v. Carter, 186 Fed.Appx. 844, 847 (10th Cir.2006) (unpublished) ("It does not accord a state judgment less than full faith and credit for a federal court to determine its effect on a subsequent federal sentence under federal law."); see also United States v. Cisneros, 112 F.3d 1272, 1281 (5th Cir. 1997) (rejecting defendant's argument that "because he had successfully completed his two-year deferred adjudication probation," that offense "could not be used to enhance his punishment ... under 841(b)(1)(A)"); United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

CONVICTION - FINALITY - DRUG OFFENSES
Smith v. Gonzales, ___ F.3d ___, 2006 WL 3012856 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed).

NOTE: This case can be cited to support the position that a second controlled substances offense may be expunged under Lujan in the Ninth Circuit as long as the first conviction had not become final by the time of the second conviction.

CONVICTION - FINALITY - FIFTH CIRCUIT
Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) ("Moosa maintains that taking away the finality requirement would lead to absurd results, such as an alien being deported when his conviction is on appeal, but the conviction later being reversed. As discussed, that is not the case here. Be that as it may, such concerns are more properly addressed to Congress.").

Sixth Circuit

CONVICTION " FINALITY
United States v. Garcia-Echavarria, 374 F.3d 440, 445 (6th Cir. 2004) ("To support an order of deportation, a conviction must be final.); Cardenas-Abreu v. Holder, 378 Fed. App'x 59 (2d Cir. 2010) (remanding the question of whether the finality rule still exists to the BIA); cf. Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) (failing to reach the finality issue, but a large majority of the Board believed that the finality rule survived the enactment of INA 101(a)(48)). Practice Advisory. For arguments in support of the continued viability of the finality rule post-IIRIRA, see the briefing in Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009). See also Immigrant Defense Project, removal defense checklist at page K-14 to K-15, available at http://immigrantdefenseproject.org/docs/2010/10-RemovalDefenseChecklist-10-15-10-draft-%5Bedits%20accepted%5D.pdf. IDP amicus briefs on this issue are available at http://immigrantde fenseproject.org/docs/09-2349-ag%20-%20Brief%20of%20Amici%20Curiae%20NYSDA%20and%20IDP.pdf and http://www.immigrantdefenseproject.org/docs/08_McKenzie%20Amicus%20Brief%20Final.pdf. We also have a somewhat out-of-date advisory at http://www.immigrantdefenseproject.org/docs/09_Cardenas_Abreu_Practice_Advisory_1.pdf. On the narrower issue of whether a conviction is "final" while a cert. petition is pending, some dicta in Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994), seem to endorse the reasoning of the Ninth Circuit that a conviction becomes "final" when direct appeals as of right have been exhausted or waived (so a discretionary petition for cert. would not defeat finality). But in the context of drug aggravated felonies based on recidivist possession offenses (which require that the first conviction be "final" at the time the recidivist offense was committed), some courts have found that a conviction is not final until cert. has been denied or the period for seeking cert. has expired. See, e.g., Smith v. Gonzales, 468 F.3d 272, 277 (5th Cir. 2006), and cases cited. IDP has been trying to monitor legal developments on the finality issue and provide amicus support at the BIA and circuit level, so please contact us if you have a case presenting this issue. Thanks to Isaac Wheeler, Immigrant Defense Project.

Ninth Circuit

CONVICTION " APPEAL " FINALITY
Planes v. Holder, 686 F.3d 1033 (9th Cir. Jun. 5, 2012), denying motion to rehear en banc, Planes v. Holder, 652 F.3d 991 (9th Cir. Jul. 5, 2011).

CONVICTION " FINALITY " DIRECT APPEAL " APPEAL NOT EXHAUSTED OR WAIVED STILL A CONVICTION
Planes v. Holder, ___ F.3d ___, 2011 WL 2619105 (9th Cir. Jul.5, 2011) (Accordingly, we conclude that the first definition of conviction in 1101(a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.); accord, Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 332 (2d Cir.2007) (IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute.); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir.1999) (concluding that there is nothing in the text or legislative history of 1101(a)(48)(A) indicating that the finality requirement imposed by Pino, and this court, prior to 1996, survives the new definition of conviction ); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004) (per curiam) (relying on plain language of 1101(a)(48)(A) to dismiss alien's contention that he was unlawfully ordered removed while he still had direct appeals pending); United States v. Saenz"Gomez, 472 F.3d 791, 794 (10th Cir.2007) (rejecting suggestion that the court should engraft a finality requirement onto the plain text of the statute and holding that a state court's entry of a judgment and sentence constituted a conviction allowing alien to be lawfully deported nine days after its entry by the state court); see also Griffiths v. INS, 243 F.3d 45, 50"51 (1st Cir.2001) (observing that finality is not required under the deferred-adjudication portion of 1101(a)(48)(A)); but see United States v. Garcia"Echaverria, 374 F.3d 440, 445 (6th Cir.2004) (To support an order of deportation, a conviction must be final. Finality requires the defendant to have exhausted or waived his rights to direct appeal. (citation omitted)); Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008); Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009).

Tenth Circuit

CONVICTION " FINALITY
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir.2008) (adopting the reasoning of sister circuits and holding that the pendency of collateral proceedings does not vitiate finality).

CONVICTION " FINALITY
Waugh v. Holder, 642 F.3d 1279, 2011 WL 2464779 (10th Cir. Jun. 22, 2011)(conviction is considered final for immigration purposes as soon as formal judgment of guilt was entered by trial court; government need not show by clear and convincing evidence that the conviction was legally valid as prerequisite to using conviction as basis for deportation: In determining whether a conviction supports removal, [i]mmigration authorities must look solely to the judicial record of final conviction and may not make their own independent assessment of the validity of [the alien's] guilty plea.... As an administrative agency, the INS has no power to adjudicate the validity of state convictions underlying deportation proceedings. Accordingly, an alien cannot collaterally attack the legitimacy of a state criminal conviction in a deportation proceeding.); quoting Trench v. INS, 783 F.2d 181, 184 (10th Cir.1986) (internal quotation marks omitted).

CONVICTION " FINALITY " PENDENCY OF PETITION FOR POST CONVICTION RELIEF
Waugh v. Holder, 642 F.3d 1279, 2011 WL 2464779 (10th Cir. Jun. 22, 2011)(conviction was final for immigration purposes as soon as formal judgment of guilt was entered by trial court, and the pendency of the state court proceedings challenging validity of guilty plea on Sixth Amendment grounds did not make conviction nonfinal for immigration purposes).

CONVICTION - FINALITY - ILLEGAL REENTRY CONTEXT
United States v. Saenz-Gomez, 472 F.3d 791 (10th Cir. Jan. 2, 2007) (rejecting claim that district court erred in enhancing sentence under 8 U.S.C. 1326(b)(2) and U.S.S.G. 2L1.2(b)(1)(B) because his 2003 state conviction for heroin trafficking was not final at the time of removal, and affirming sentence for illegal reentry after removal following a conviction for an aggravated felony). http://laws.lp.findlaw.com/10th/062148.html

Other

PRACTICE ADVISORY " CONVICTION " FINALITY REQUIREMENT
Katherine Brady, Immigrant Legal Resource Center Practice Advisory, Ninth Circuit in Planes v. Holder (9th Circuit July 2011) Abandons Finality Requirement for Conviction, so Availability or Pendency of Direct Appeal Does Not Prevent DHS from Relying on Conviction to Trigger Immigration Consequences, www.ilrc.org/crime

CONVICTION - FINALITY
Practice Advisory, Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu (Immigrant Defense Project, May 11, 2009), www.immigrantdefenseproject.org.

CONVICTION - FINALITY - PRACTICE ADVISORY
AILIF practice advisory on finality of removal decisions for judicial review purposes. http://www.ailf.org/lac/lac_pa_topics.shtml#section6.

CONVICTION - FINALITY - CONVICTION SUBJECT TO PENDING LATE APPEAL IS INSUFFICIENTLY FINAL AND SO DOES NOT TRIGGER ADVERSE IMMIGRATION CONSEQUENCES
The Supreme Court holds successive habeas petitioners cannot pursue relief in the federal courts. Tyler v. Cain, 533 U.S. 656 (2001) (a petitioner cannot take advantage of the successive habeas petition rule, 28 U.S.C. 2244(b)(2), unless the Supreme Court has expressly held in a collateral review case that the earlier decision is retroactive). While 28 U.S.C. 2244(d)(1)(C) has slightly different language than 2244(b)(2), the reasoning in Tyler would effectively preclude an argument under 28 U.S.C. 2244(d)(1)(C) for an exception to the one-year AEDPA statute of limitations for federal habeas corpus petitioners who wish to pursue a claim under Padilla but who have not filed the petition within that period. The Court in Tyler stated: The Supreme Court does not 'ma[k]e' a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. We thus conclude that a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive. (Id. at ___.)