Planes v. Holder, ___ F.3d ___, ___, 2011 WL 2619105 (9th Cir. Jul. 5, 2011) (federal conviction of possessing 15 or more access devices, in violation of 18 U.S.C. 1029(a)(3), was a fraud offense and thus categorically a crime involving moral turpitude).

Note. This decision seems very poorly reasoned. It ignores pertinent authority. E.g., Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008); Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009). It ignores the argument that since the sentence was appealed, there was no sentence at all in effect in the case, and thus there was no complete judgment (which includes sentence), and no restraint portion of the conviction under INA 101(a)(48)(A) in effect. See Griffiths v. INS, 243 F.3d 45, 50"51 (1st Cir.2001), which the Planes court described as observing that finality is not required under the deferred-adjudication portion of 1101(a)(48)(A), but which actually held there to be no conviction in that case, since no sentence at all had been imposed " a circumstance far closer to the situation in Planes. Finally, the general rule is that Congress is deemed to approve judicial decisions that are in effect concerning a point when it legislates. The universal rule, at the time the new statutory definition of conviction came into effect, was that a conviction must be final before it can be the basis of immigration consequences. Congress did not disturb this rule. Therefore, it must be deemed to have approved of it. This argument was apparently not made in Planes, which therefore did not reject it.

The question before us is whether a conviction is final for purposes of deportation proceedings once any appeal as a matter of right has been exhausted. Morales-Alvarado v. Immigration and Naturalization Service 655 F.2d 172, 175 (9th Cir.1981) By any appeal, the court must have meant any appeal of the judgment of guilt, as in any level of an appeal of right, not an appeal of the sentence only.

There is also a great deal of authority in support of the view that without a sentence, there is no conviction. This point, as well, was not addressed in Planes. There may also be an argument under Chenery v. SEC that the Ninth Circuit can only affirm the case under the grounds set forth in the opinion, and the BIA never affirmed on the basis that the Ninth affirmed. Thanks to Katherine Brady, Michael Mehr, and Jonathan Moore.