(B)  Effect of 1996 Definition of Conviction.  There is a question, however, whether the new statutory definition of conviction has altered this rule.  The BIA has not overruled its finality cases in any published opinion.[177]  The BIA, however, does not consistently recognize the finality rule in its unpublished decisions.  Three circuits have held, or suggested, that the new statutory definition of conviction eliminated the finality requirement.[178]  The reasoning of these decisions, however, is faulty.  The general rule is that Congress, when legislating on a subject, is aware of the existing judicial decisions on that subject.  When Congress fails expressly to overrule existing judicial decisions, it is deemed to have approved of them.[179]  In the 1996 statutory definition of conviction, Congress did not expressly overrule the finality decisions.  Therefore, the 1996 legislation did not alter the pre-existing rule.  This argument should prevail in other circuits.  Existing published BIA decisions enforce the finality argument in all circuits that have not expressly held to the contrary, and should be raised even in those circuits that have mistakenly suggested or held to the contrary.

 

                For example, in Pino v. Landon,[180] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.  The court stated, “[O]n the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore held it could not support the deportation charge.

 

[177] See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (reserving question).

[178] Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (possibly dictum); see 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).

[179] See Matter of Punu, supra, at 243-248 (Boardmember Rosenberg concurring and dissenting).

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

CONVICTION - FINALITY - STATUTORY INTERPRETATION - CONGRESS DID NOT OVERRULE PRIOR CASE LAW BY SILENCE IN NEW LEGISLATION
E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it).

"Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978).

"This rule is based on the theory that the legislature is familiar with the contemporaneous interpretation of a statute . . . . Therefore, it impliedly adopts the interpretation upon reenactment. " 2B, N. Singer, Statutes and Statutory Construction 108 (6th ed. 2000) (citing National Lead Co. v. United States, 252 U.S. 140, 147 (1920); McCajughn v. Hershey Chocolate Co., 283 U.S. 488, 492 (1931); Helvering v. Griffiths, 318 U.S. 371 (1943); Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); San Huan New Materials High Tech, Inc. v. Int'l Trade Com'n, 161 F.3d 1347 (Fed. Cir. 1998), reh'g denied, in banc suggestion declined (Jan. 28, 1999) and cert. dismissed, 120 S.Ct. 394 (1999).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982). CD4:16.12; AF:4.11; CMT:7.4 DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGES United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), properly triggered 16-level sentence enhancement for illegal reentry after deportation since charging to which plea was entered listed offenses in the conjunctive, and plea of guilty was entered to every offense listed within the counts of conviction).

NOTE: This decision appears to contradict the decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.").

The court based its reasoning on the following analysis:

In California, a guilty plea admits every element of the offense charged, People v. Chadd, 28 Cal.3d 739, 748, 170 Cal.Rptr. 798, 621 P.2d 837 (Cal.1981), including all accusations and factors comprising the charge contained in the pleading. People v. Palacios, 56 Cal.App.4th 252, 257, 65 Cal.Rptr.2d 318 (Cal.Ct.App.1997); see People v. Tuggle, 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422 (Cal.Ct.App.1991) ("By pleading guilty as charged [to an information worded in the conjunctive, charging, "robbery by means of force and fear"], appellant necessarily admitted the force allegation and cannot now escape the consequences of that admission.") (emphasis added). Thus, "a plea of guilty means guilty as charged in the information, and by it all averments of fact are admitted.... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts. " Arenstein v. Cal. State Bd. of Pharmacy, 265 Cal.App.2d 179, 190, 71 Cal.Rptr. 357 (Cal.Ct.App.1968) disapproved on other grounds by Barber v. Long Beach Civil Serv. Comm'n, 45 Cal.App.4th 652, 658, 53 Cal.Rptr.2d 4 (Cal.Ct.App.1996) (citations omitted).

Accordingly, by pleading guilty to counts one and two as worded, in the conjunctive, Garcia-Medina admitted to several offenses committed on at least two occasions. It is uncontested that most of these offenses qualify as drug trafficking for the purposes of section 2L1.2. Garcia-Medina did not clarify his plea before the California trial court; instead, he admitted every offense listed in the charging document and cannot now escape the consequences of his admission. See People v. Guerrero, 44 Cal.3d 343, 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150 (Cal.1988).

United States v. Garcia-Medina, __ F.3d __, __, 2007 WL 2317381 at *3 (8th Cir. Aug. 15, 2007).

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 - IIRAIRA STATUTORY DEFINITION OF CONVICTION DID NOT ALTER THE PRE-EXISTING FINALITY REQUIREMENT
Cf. Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("Furthermore, when Congress enacted section 350(a) of the IIRIRA in 1996, different variations of the "categorical" approach had been applied in immigration proceedings for more than 80 years, and we must presume that Congress was familiar with that fact when it made deportability under section 237(a)(2)(E)(i) depend on a "conviction." Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Had Congress wished to predicate deportability on an alien's actual conduct, it would have been a simple enough matter to have done so. Accordingly, we conclude that the respondent's removability as an alien convicted of a "crime of child abuse" must be established categorically.").

Second Circuit

POST CON RELIEF " CONVICTION " FINALITY " DIRECT APPEAL " PENDING APPEAL RENDERS A CONVICTION NONFINAL, SO IT CANNOT BE A BASIS FOR DEPORTATION IN IMMIGRATION PROCEEDINGS
Walcott v. Chertoff, 517 F.3d 149, 155 (2d Cir. 2008) (pendency of a direct appeal from a criminal conviction renders the conviction nonfinal and suspends an aliens deportability.)

CONVICTION - FINALITY - NEW DEFINITION ELIMINATED FINALITY REQUIREMENT
Puello v. BCIS, 511 F.3d 324, ___ (2d Cir. Dec. 20, 2007) ("IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute. See Abiodun v. Gonzales, 461 F.3d 1210, 1213 (10th Cir. 2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004); Moosa, 171 F.3d at 1009.") (dictum).

Third Circuit

CONVICTION - FINALITY - DIRECT APPELLATE REVIEW OF A CONVICTION MUST HAVE BEEN EXHAUSTED OR WAIVED BEFORE CONVICTION IS SUFFICIENTLY FINAL FOR REMOVAL PURPOSES
Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun.9, 2008)("[A] conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived." Matter of Ozkok, 19 I. & N. Dec. 546, 552 n. 7 (BIA 1988) (citing Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir.1975); Will v. INS, 447 F.2d 529 (7th Cir. 1971)), superceded by statute on other grounds. Here, petitioner's time to directly appeal his convictions had expired, and a petition for a writ of error coram nobis is not a direct appeal of, but rather a collateral attack on, a conviction. See United States v. Gross, 614 F.2d 365, 368 (3d Cir. 1980).").

Fifth Circuit

CONVICTION - FINALITY
Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007) (even if the conviction is on direct appeal, the conviction remained a conviction for immigration purposes under Fifth Circuit controlling precedent), following Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), vacated on denial of rehearing en banc by Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005).

Sixth Circuit

CONVICTION " FINALITY
United States v. Garcia-Echavarria, 374 F.3d 440, 445 (6th Cir. 2004) ("To support an order of deportation, a conviction must be final.); Cardenas-Abreu v. Holder, 378 Fed. App'x 59 (2d Cir. 2010) (remanding the question of whether the finality rule still exists to the BIA); cf. Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) (failing to reach the finality issue, but a large majority of the Board believed that the finality rule survived the enactment of INA 101(a)(48)). Practice Advisory. For arguments in support of the continued viability of the finality rule post-IIRIRA, see the briefing in Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009). See also Immigrant Defense Project, removal defense checklist at page K-14 to K-15, available at http://immigrantdefenseproject.org/docs/2010/10-RemovalDefenseChecklist-10-15-10-draft-%5Bedits%20accepted%5D.pdf. IDP amicus briefs on this issue are available at http://immigrantde fenseproject.org/docs/09-2349-ag%20-%20Brief%20of%20Amici%20Curiae%20NYSDA%20and%20IDP.pdf and http://www.immigrantdefenseproject.org/docs/08_McKenzie%20Amicus%20Brief%20Final.pdf. We also have a somewhat out-of-date advisory at http://www.immigrantdefenseproject.org/docs/09_Cardenas_Abreu_Practice_Advisory_1.pdf. On the narrower issue of whether a conviction is "final" while a cert. petition is pending, some dicta in Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994), seem to endorse the reasoning of the Ninth Circuit that a conviction becomes "final" when direct appeals as of right have been exhausted or waived (so a discretionary petition for cert. would not defeat finality). But in the context of drug aggravated felonies based on recidivist possession offenses (which require that the first conviction be "final" at the time the recidivist offense was committed), some courts have found that a conviction is not final until cert. has been denied or the period for seeking cert. has expired. See, e.g., Smith v. Gonzales, 468 F.3d 272, 277 (5th Cir. 2006), and cases cited. IDP has been trying to monitor legal developments on the finality issue and provide amicus support at the BIA and circuit level, so please contact us if you have a case presenting this issue. Thanks to Isaac Wheeler, Immigrant Defense Project.

Ninth Circuit

CONVICTION " APPEAL " FINALITY
Planes v. Holder, 686 F.3d 1033 (9th Cir. Jun. 5, 2012), denying motion to rehear en banc, Planes v. Holder, 652 F.3d 991 (9th Cir. Jul. 5, 2011).

CONVICTION " FINALITY " DIRECT APPEAL " APPEAL NOT EXHAUSTED OR WAIVED STILL A CONVICTION
Planes v. Holder, ___ F.3d ___, 2011 WL 2619105 (9th Cir. Jul.5, 2011) (Accordingly, we conclude that the first definition of conviction in 1101(a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.); accord, Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 332 (2d Cir.2007) (IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute.); Moosa v. INS, 171 F.3d 994, 1009 (5th Cir.1999) (concluding that there is nothing in the text or legislative history of 1101(a)(48)(A) indicating that the finality requirement imposed by Pino, and this court, prior to 1996, survives the new definition of conviction ); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004) (per curiam) (relying on plain language of 1101(a)(48)(A) to dismiss alien's contention that he was unlawfully ordered removed while he still had direct appeals pending); United States v. Saenz"Gomez, 472 F.3d 791, 794 (10th Cir.2007) (rejecting suggestion that the court should engraft a finality requirement onto the plain text of the statute and holding that a state court's entry of a judgment and sentence constituted a conviction allowing alien to be lawfully deported nine days after its entry by the state court); see also Griffiths v. INS, 243 F.3d 45, 50"51 (1st Cir.2001) (observing that finality is not required under the deferred-adjudication portion of 1101(a)(48)(A)); but see United States v. Garcia"Echaverria, 374 F.3d 440, 445 (6th Cir.2004) (To support an order of deportation, a conviction must be final. Finality requires the defendant to have exhausted or waived his rights to direct appeal. (citation omitted)); Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008); Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009).

Tenth Circuit

CONVICTION " FINALITY
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir.2008) (adopting the reasoning of sister circuits and holding that the pendency of collateral proceedings does not vitiate finality).

CONVICTION " FINALITY
Waugh v. Holder, 642 F.3d 1279, 2011 WL 2464779 (10th Cir. Jun. 22, 2011)(conviction is considered final for immigration purposes as soon as formal judgment of guilt was entered by trial court; government need not show by clear and convincing evidence that the conviction was legally valid as prerequisite to using conviction as basis for deportation: In determining whether a conviction supports removal, [i]mmigration authorities must look solely to the judicial record of final conviction and may not make their own independent assessment of the validity of [the alien's] guilty plea.... As an administrative agency, the INS has no power to adjudicate the validity of state convictions underlying deportation proceedings. Accordingly, an alien cannot collaterally attack the legitimacy of a state criminal conviction in a deportation proceeding.); quoting Trench v. INS, 783 F.2d 181, 184 (10th Cir.1986) (internal quotation marks omitted).

CONVICTION " FINALITY " PENDENCY OF PETITION FOR POST CONVICTION RELIEF
Waugh v. Holder, 642 F.3d 1279, 2011 WL 2464779 (10th Cir. Jun. 22, 2011)(conviction was final for immigration purposes as soon as formal judgment of guilt was entered by trial court, and the pendency of the state court proceedings challenging validity of guilty plea on Sixth Amendment grounds did not make conviction nonfinal for immigration purposes).

Other

PRACTICE ADVISORY " CONVICTION " FINALITY REQUIREMENT
Katherine Brady, Immigrant Legal Resource Center Practice Advisory, Ninth Circuit in Planes v. Holder (9th Circuit July 2011) Abandons Finality Requirement for Conviction, so Availability or Pendency of Direct Appeal Does Not Prevent DHS from Relying on Conviction to Trigger Immigration Consequences, www.ilrc.org/crime

CONVICTION - FINALITY
Practice Advisory, Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu (Immigrant Defense Project, May 11, 2009), www.immigrantdefenseproject.org.

CONVICTION - FINALITY - PRACTICE ADVISORY
AILIF practice advisory on finality of removal decisions for judicial review purposes. http://www.ailf.org/lac/lac_pa_topics.shtml#section6.

CONVICTION - FINALITY - CONVICTION SUBJECT TO PENDING LATE APPEAL IS INSUFFICIENTLY FINAL AND SO DOES NOT TRIGGER ADVERSE IMMIGRATION CONSEQUENCES
The Supreme Court holds successive habeas petitioners cannot pursue relief in the federal courts. Tyler v. Cain, 533 U.S. 656 (2001) (a petitioner cannot take advantage of the successive habeas petition rule, 28 U.S.C. 2244(b)(2), unless the Supreme Court has expressly held in a collateral review case that the earlier decision is retroactive). While 28 U.S.C. 2244(d)(1)(C) has slightly different language than 2244(b)(2), the reasoning in Tyler would effectively preclude an argument under 28 U.S.C. 2244(d)(1)(C) for an exception to the one-year AEDPA statute of limitations for federal habeas corpus petitioners who wish to pursue a claim under Padilla but who have not filed the petition within that period. The Court in Tyler stated: The Supreme Court does not 'ma[k]e' a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. We thus conclude that a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive. (Id. at ___.)