Criminal Defense of Immigrants

(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cases in any published opinion.[177]  The BIA, however, does not consistently recognize the finality rule in its unpublished decisions.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                For example, in Pino v. Landon,[180] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.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).