Post-Conviction Relief for Immigrants

A conviction must be final before the immigration authorities are authorized to begin deportation proceedings.[284]  This is true regardless of the ground of deportation triggered by a conviction.[285]

During its pendency, a direct appeal of right (as opposed to a discretionary appeal) prevents a conviction from being considered a final judgment of conviction, and thus a conviction does not yet exist for immigration purposes.[286]  This rule also applies during the time an appeal can still be initiated.

For example, in Pino v. Landon,[287] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.  The court held, “On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore concluded it could not.

The BIA has held that deferred adjudication dispositions constitute convictions, even though a direct appeal could be started in the event of a violation of the deferred adjudication program, followed by a formal judgment and sentence.[288]  This rule, however, appears to be limited to the deferred adjudication context, and it has not been extended to invalidate direct appeal as a means of avoiding finality of conviction.

Finality Concept Applies to Foreign Convictions.  A foreign conviction must also be “final” before it can be used to initiate proceedings.[289]

[284] Pino v. Landon, 349 U.S. 901 (1955); Zamora-Morel v. INS, 905 F.2d 833, 839 n.3 (5th Cir. 1990) (Texas deferred adjudication disposition held not to be a final conviction); Martinez-Montoya v. INS, 904 F.2d 1018, 1025 (5th Cir. 1990) (same); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (a person has not been convicted of a federal crime for purposes of deportation until a judgment has been entered and direct appeal has been exhausted or waived); Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR, 7 I. & N. Dec. 318, 322 (BIA 1956, AG 1957); Matter of O, 7 I. & N. Dec. 539, 541 (BIA 1957).  But see Moosa v. INS, 171 F.3d 994, 1008-1010 (5th Cir. 1999)(new IIRAIRA statutory definition of “conviction” eliminated finality requirement); Montenegro v. Ashcroft, ___F.3d___ (7th Cir. Jan. 22, 2004).

[285] See Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981) (firearms conviction held final).

[286] Marino v. INS, 537 F.2d 686 (2d Cir. 1976) (conviction not considered final while direct appeal from conviction pending); Will v. INS, 447 F.2d 529, 532 (7th Cir. 1971) (conviction not final during appeal from denial of motion in arrest of judgment: “a final curtain must have been drawn in the criminal proceedings”); 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); Matter of Thomas, 21 I. & N. Dec. 20, 21 n.1 (BIA 1995); Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988); Matter of Espinoza, 15 I. & N. Dec. 328 (BIA 1975) (appeal from denial of motion to withdraw guilty plea).  Cf. Kabongo v. INS, 837 F.2d 753, 758 (6th Cir. 1988) (immigration judge’s reliance on conviction while appeal was pending was harmless error, since conviction had become final before BIA rendered its decision).  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 deport convicted aliens expeditiously, 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.

[287] Pino v. Landon, 349 U.S. 901 (1955) (per curiam).

[288] Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc).

[289] Marino v. INS, 537 F.2d 686 (2d Cir. 1976) (Italian conviction of fraudulent destruction of the defendant’s own property never became final since Italian tribunal found that crime had been extinguished by presidential amnesty and refused to hear the appeal and where the defendant did not accept the amnesty, but was precluded from appealing decision against his will); Matter of D, 8 I. & N. Dec. 199 (BIA 1958) (conviction in Canada has attained “finality” for purposes of the immigration laws when the offender has been placed on probation or on suspended sentence pursuant to § 1081 Canadian Criminal Code).