Aggravated Felonies

If the defendant has missed the deadline by which to appeal, s/he may nonetheless attempt to file a late notice of appeal to start the appellate process.   When a late notice of appeal is filed, the clerk will mark it “received,” and the defendant can file a petition for a writ of mandamus or habeas corpus, or a motion for relief from default in the court of appeal, which is usually granted if meritorious within a few weeks after filing.  The grounds for initiating an untimely appeal normally involve allegations of ineffective assistance of counsel based on counsel’s failure to inform the defendant about the deadlines by which to appeal, or to advise the defendant about possible grounds on which they may appeal.[326] 

If the court grants the motion or petition for an untimely appeal, the conviction will be considered “nonfinal” until the appeal is resolved.[327]  Removal proceedings that have already been initiated must be terminated until the appeal is concluded.  However, a motion for an untimely first direct appeal will not destroy the finality of the conviction, until the court has granted it.[328]

            Where a conviction has been reversed on direct appeal, it is appropriate to reopen deportation proceedings since the conviction no longer exists as a basis for deportation.[329]

[326] See Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029 (2000) (holding that ineffective assistance will be established entitling the defendant to an out-of-time appeal where counsel fails to “consult” with a criminal defendant about the advantages and disadvantages of filing a notice of appeal, and the defendant has expressed any interest in appealing or a rational defendant would have wanted to appeal under the circumstances of the case).  See N. Tooby, Post-Conviction Relief for Immigrants § 5.21 (2004).

[327] Matter of PV, 20 I. & N. Dec. 894 (BIA 1994); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[328] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality of a conviction); Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).

[329] De Faria v. INS, 13 F.3d 422, 423 (1st Cir. 1993).