A direct appeal of right can have two important immigration consequences:

 

1.         During its pendency, a direct appeal prevents a conviction from being considered a final judgment of conviction, and thus it does not exist for immigration purposes;[64] and

 

2.         If the appellate court reverses the judgment of conviction, the conviction ceases to exist for immigration purposes and cannot trigger deportation or inadmissibility, or, indeed, any other adverse immigration consequence that is dependent on the existence of a conviction.  See § 5.24, infra.

 

[64] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  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. § 242.2(b) (defining “conviction” for purposes of the restriction against judicial review of removal orders of convicted aliens, INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C)).

Other

POST CONVICTION RELIEF - DIRECT APPEAL -ORDER VACATING CONVICTION ON MERITS ON APPEAL OR ON POST CONVICTION PROCEEDINGS HAS BEEN ELIMINATED FOR IMMIGRATION PURPOSES
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")