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 INS to take action against the client based on the conviction under appeal.[67]

 

            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.[68]  This runs counter to the rule of statutory interpretation that Congress is presumed to be aware of existing law, and must explicitly overrule it.

 

Since a pending appeal normally deprives the trial court of jurisdiction over the case, however, the appeal must be abandoned or terminated before counsel can ordinarily apply in the trial court for post-conviction relief by motion or writ.

 

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.

 

An appeal from the denial of a motion to file a notice of appeal after the 10-day appeal period has run would probably not render the conviction nonfinal, since it is in effect still an ungranted motion for leave to pursue a late appeal.  See § 5.19, supra.  Once the appellate court has ordered a late appeal to go forward, however, the conviction is no longer final until the appeal has been concluded.

[67] Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (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, Int. Dec. 3044 (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 aliens, INA § 242(i), 8 U.S.C. § 1252(i).  See also Matter of Punu, Int. Dec. 3364 (BIA 1998) (en banc) (separate opinion of Board Member Rosenberg concurring and dissenting, for a comprehensive discussion of the finality requirement). See also California Criminal Law and Immigration § § 2.1, 8.24.

[68] 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).

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 OF CONVICTION - FIFTH AND SEVENTH CIRCUITS DO NOT FOLLOW GENERAL RULE
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. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. 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).

Lower Courts of Fifth Circuit

CONVICTION - DATE OF CONVICTION IS DATE PUNISHMENT IMPOSED
Donaldson v. United States, __ F.Supp.2d __, 2005 WL 1248879 (S.D. Tex. April 26, 2005) (noncitizen found guilty by jury of an aggravated felony offense [simple possession] on November 13, 1989, but sentenced [to deferred adjudication] on January 19, 1990, was found to have been "convicted" on January 19, 1990, and was therefore permanently barred from naturalization for inability to show good moral character).

Ninth Circuit

POST CON RELIEF - FINALITY OF ORDER VACATING CONVICTION
The DHS is arguing that if the prosecution appeals a trial court order vacating the criminal judgment against the defendant, the immigration court can continue to treat the case as if the conviction is still in effect. Immigration counsel could try the argument that a trial-court conviction is treated as existing in criminal court, even though an appeal is pending, but of course that is not true in immigration court: a conviction on appeal is not treated as final in immigration court until the appeal is over with.  Immigration counsel could try the judicial economy argument, that 95% of appeals in criminal cases are unsuccessful, so it is grossly unfair to deport the respondent before the appeal is over because 95% of the time it will have been a mistake, but the prosecution could break down that statistic into defense appeals (95% lost) and prosecution appeals (67% won).  The Ninth Circuit in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), vacating Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), stated that Congress cannot be thought to intend that a noncitizen should be deported when a delay until probation has expired will bring an effective expungement. The BIA in Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980), held that the IJ has discretion to continue a deportation hearing to allow the respondent to get an expungement where the expungement will solve the problem. These decisions could be used to argue that the IJ should at least continue the removal proceeding to see if the deportable conviction still exists at the termination of the appeal.  This last is a stronger argument if the prosecution's grounds for appeal is weak. It would be possible to file a habeas petition in United States District Court, under 28 U.S.C. 2241, and argue that the prosecution is not likely to prevail on the appeal, and therefore the DHS is not likely ultimately to win a deportation order, and the deportation proceeding should therefore be stayed until the criminal appeal has been completed.