Safe Havens

(B)  Finality of Conviction.  After conviction has occurred, the conviction is not considered final until the time for direct appeal as of right has expired, or appeal has been waived by failure to file timely a notice of appeal, or the appeal that was taken has been concluded.[124]  Only then is the conviction sufficiently final to support a conviction-based ground of deportation, and only then should a conviction be sufficiently final to establish that certain conduct occurred for purposes of establishing a conduct-based ground of deportation.  After this point, the immigration authorities may use the conviction to attempt to establish a ground of deportation. 

            If a petition for post-conviction relief is filed, challenging the legal validity of the conviction, the conviction remains final for immigration purposes until post-conviction relief has been granted on a ground of legal invalidity.  If the prosecution appeals from a grant of post-conviction relief, it is an open question whether the conviction still exists or not for immigration purposes.

            Even an unsuccessful appeal can — by keeping the conviction from being considered “final” for immigration purposes — prevent deportation and give a client breathing space within which to explore other forms of post-conviction relief.  Until the conviction is final (i.e., until direct appeals have been waived or exhausted), there is no basis for the DHS to take action against the client based on the conviction under appeal.[125]

            Several courts of appeals, however, have adopted the very dubious position that IIRAIRA’s new definition of conviction, by remaining silent on the question of the well-established finality requirement, abolished it.[126]  This runs counter to the rule of statutory interpretation that Congress is presumed to be aware of existing law, and must explicitly overrule it.

If the appellant raises errors in the sentencing proceedings on direct appeal, the pendency of that sentencing appeal renders not only the sentence but also the conviction itself nonfinal for immigration purposes.  While the direct appeal of sentencing issues will prevent the criminal judgment from being final, immigration authorities are sometimes claiming that a sentencing appeal does not prevent the conviction itself from being considered final for immigration purposes, and that they may initiate removal proceedings based on the conviction where no sentence is necessary to create a conviction-based ground of removal.  For example, under this analysis, a conviction of a crime of violence, which would be an aggravated felony only if a sentence of one year or more had been imposed, could not be considered as final for immigration purposes if a direct appeal from the sentence was pending. 

This analysis is fundamentally flawed, however.  Direct appeal of sentence renders not only the sentence but the conviction itself nonfinal, since a sentence is required as one of two essential components of every conviction.  See § 5.18, supra.  Therefore, a direct appeal from a sentence renders the conviction itself nonfinal, and the immigration authorities may not initiate or maintain removal proceedings on the basis of that conviction until the appeal has been finally resolved.

[124] See N. Tooby, Post-Conviction Relief for Immigrants § 5.25 (2004).

[125] Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955); Will v. INS, 447 F.2d 529, 531 (7th Cir. 1971); Mansoori v. INS, 32 F.3d 1020, 1024 (7th Cir. 1994); Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988); 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).  An INS regulation provides 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) (defining conviction for purposes of the mandate to expeditiously deport convicted noncitizens under, INA § 242(i), 8 U.S.C. § 1252(i)).  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). See also K. Brady, et al., California Criminal Law and Immigration § § 2.1, 8.24 (2004).

[126] Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004) (per curiam); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir. 1999) (“There is no indication that the finality requirement imposed by Pino, and this court, prior to 1996, survives the new definition of ‘conviction’ found in IIRIRA § 322(a).”); see also Griffiths v. INS, 243 F.3d 45, 50 (1st Cir. 2001).