Criminal Defense of Immigrants

(A)  Basic Rule.  Long-standing law requires a conviction to be final before it will trigger deportation.[173]  This includes when the criminal case is on direct appeal, late appeal and certain “slow plea” dispositions.  The same is true of foreign convictions,[174] but the pendency of collateral post-conviction attacks does not destroy finality.[175]  A non-final conviction, however, can sometimes be used to enhance sentence in a criminal case.[176]

[173] 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, 355 F.3d 1035, 1037 (7th Cir. 2004) (possibly dictum); Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (ignoring finality requirement but remanding because there was no evidence that petitioner had a restraint on liberty).

[174] 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 well); 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 section 1081 of the Canadian Criminal Code).

[175] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (direct appeal from two judgments denying relief in collateral attach on judgment of conviction was not a direct appeal from judgment of conviction); Rivas v. INS (S.D.N.Y. Jan. 27, 2003) (unpublished) (“A conviction is final and may be relied upon in removal proceedings when review of the conviction on direct appeal has concluded.  Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991).  A conviction subject to collateral attack is still final for the purpose of immigration review.  Agero v. McElroy, 901 F.Supp. 146, 146 (S.D.N.Y. 1995).”); Johnson v. INS No. 3:03 CV96(JBA) (D. Conn. Jan. 21, 2003) (unpublished) (“Moreover, Johnson’s conviction qualifies as a conviction even under the pre-§ 1101(a)(48) “finality” test of Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991) and Marino v. INS, 537 F.2d 686, 691-692 (2d. Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28 U.S.C. § 2254.”); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality of conviction; this ruling was dictum since petition for review was dismissed as moot because conviction had been affirmed by state high court after BIA decision relying on it); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975).

[176] United States v. Saenz-Gomez, 472 F.3d 791 (10th Cir. Jan. 2, 2007) (rejecting claim that district court erred in enhancing sentence under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(B) because defendant's 2003 state conviction for heroin trafficking was not final at the time of removal, and affirming sentence for illegal reentry after removal following a conviction for an aggravated felony).