A direct appeal can have two different immigration consequences.  First, a reversal of the conviction eliminates the conviction for immigration purposes.  See § 5.70, infra.  Second, the pendency of the direct appeal, or the time within which a direct appeal can be initiated, renders the conviction nonfinal for immigration purposes, so that the immigration authorities may not begin removal proceedings on the basis of the nonfinal conviction until the direct appeal has been concluded. See § 5.71, infra.

Second Circuit

POST CON RELIEF - DIRECT APPEAL - LATE-FILED APPEAL THAT WAS ACCEPTED BY STATE COURT FOR PROCESSING IS THE SAME AS TIMELY-FILED DIRECT APPEAL FOR FINALITY PURPOSES
Cardenas Abreu v. Holder, No. 09-2349, 2010 U.S. App. LEXIS 10498 (2d Cir. summary order, 2010) (BIA misinterpreted state law when it attempted to distinguish reinstated late appeal from a timely filed direct appeal, since Second Circuit found a reinstated appeal is "equivalent to any other direct appeal for the purposes of finality"; however, the court determined that remand to the BIA was appropriate to address in the first instance whether IIRIRAs definition of conviction is ambiguous with respect to the finality requirement and "whether a conviction is sufficiently final to warrant removal when a petitioner has a direct appeal pending."), vacating and remanding Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009)(a conviction is final for purposes of removability even where the noncitizen had a pending appeal of his conviction if the appeal was filed "late," even though the late appeal had been reinstated and accepted by the criminal appellate court, reasoning that Congress intended to give "broad effect" to the definition of "conviction" in INA 101(a)(48)(A), and that, unlike a direct appeal, the states "late" appeal procedure created "significant uncertainty and delay in reaching an ultimate resolution regarding the existence of an otherwise final conviction.").