Criminal Defense of Immigrants

(D)  Direct Appeal of Sentence.  Direct appeal from the judgment involving only sentence or post-judgment issues does not destroy the finality of the conviction for immigration purposes, but this conclusion may be challenged in a petition for review.[183]

One claim is that if a sentence is on appeal, the sentence is not final; if the sentence is essential to the deportability of the conviction, for example, an aggravated felony crime of violence with a one-year sentence imposed, then the conviction itself cannot be considered final until the sentence essential to deportability is also final.  Another more general claim is that the conviction does not exist, under the 1996 statutory definition of deportability, without a sentence.  See § 7.20, supra.  Therefore, the non-finality of the sentence implies the non-finality of the conviction itself.

[183] Matter of Chairz-Castaneda, 21 I. & N. Dec. 44 (BIA Apr. 28, 1995) (right to appeal such issues as whether a violation of probation has occurred or the sentence imposed upon entry of judgment was correct will not prevent a finding of a final conviction for immigration purposes; to disturb finality, issues on appeal must relate to the issue of “guilt or innocence of the original charge.”).  This decision contravenes authorities holding no conviction exists unless sentence has been imposed.  See § 7.20, supra.