During its pendency, a direct appeal of right (as opposed to a discretionary appeal or petition for post-conviction relief), prevents a conviction from being considered a final judgment of conviction, and thus it does not yet exist for immigration purposes.[321]  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.

 

            For example, in Pino v. Landon,[322] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.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. This is not true in the Fifth or Seventh Circuits.[323]

 

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.[324]  This holding appears limited to the deferred adjudication context, and has not been extended to invalidate direct appeal as a means of avoiding finality of conviction.

[321] 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.

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

[323] 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).

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

Fifth Circuit

CONVICTION - FINALITY
Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (even if the conviction is on direct appeal, the conviction remained a conviction for immigration purposes under Fifth Circuit controlling precedent), following Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), vacated on denial of rehearing en banc by Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005).