J. M. ACOSTA

Cite as 27 I&N Dec. 420 (BIA 2018) Interim Decision #3934

Matter of J. M. ACOSTA, Respondent

Decided August 29, 2018

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A conviction does not attain a sufficient degree of finality for immigration purposes

until the right to direct appellate review on the merits of the conviction has been exhausted

or waived.

(2) Once the Department of Homeland Security has established that a respondent has a

criminal conviction at the trial level and that the time for filing a direct appeal has passed,

a presumption arises that the conviction is final for immigration purposes, which the

respondent can rebut with evidence that an appeal has been filed within the prescribed

deadline, including any extensions or permissive filings granted by the appellate court, and

that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in

the criminal proceedings.

(3) Appeals, including direct appeals, and collateral attacks that do not relate to the

underlying merits of a conviction will not be given effect to eliminate the finality of the

conviction.

FOR RESPONDENT: Nicholas John Phillips, Esquire, Albany, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Perl, Assistant Chief

Counsel

BEFORE: Board Panel: KELLY and GREER, Board Members. Concurring and

Dissenting Opinion: MALPHRUS, Board Member.

KELLY, Board Member:

In a decision dated August 31, 2017, an Immigration Judge found the

respondent removable under section 237(a)(2)(A)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien convicted of

a crime involving moral turpitude. 1 The Immigration Judge denied the

respondent’s motion to terminate, as well as his applications for cancellation

1

The respondent was also charged under sections 237(a)(2)(A)(iii) and (B)(i) of the Act,

as an alien convicted of an aggravated felony and a controlled substance violation,

respectively. Through counsel, the respondent conceded removability based on the

controlled substance charge. The Immigration Judge did not sustain the aggravated felony

charge, but because the Department of Homeland Security has not challenged that finding

on appeal, the issue is not before us.

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of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012),

and for a waiver of inadmissibility under former section 212(c) of the Act,

8 U.S.C. § 1182(c) (1994), and ordered him removed from the United States.

The respondent has appealed from that decision and has filed a motion to

remand based on new evidence. The Department of Homeland Security

(“DHS”) opposes both the appeal and the motion to remand. The appeal will

be dismissed in part, and the record will be remanded to the Immigration

Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Dominican Republic who

was admitted to the United States as a lawful permanent resident on

March 11, 1992. On May 18, 1993, he pled guilty to attempted criminal

sale of a controlled substance in the third degree in violation of section

110-220.39 of the New York Penal Law. On April 7, 2016, the respondent

pled guilty to criminal possession of a controlled substance (narcotic) in the

third degree in violation of section 220.16(12) of the New York Penal Law.

Based on the respondent’s 1993 conviction, the Immigration Judge found

him removable under section 237(a)(2)(A)(i) of the Act for having been

convicted of a crime involving moral turpitude committed within 5 years

after admission, for which a sentence of 1 year or longer may be imposed. 2

The respondent has appealed from that finding, arguing that his offense is

not a crime involving moral turpitude.

While his appeal was pending, the respondent filed a motion to remand.

In support of his motion, he submitted evidence that on October 10, 2017,

the Appellate Division of the Supreme Court for the First Judicial

Department in the County of New York granted his motion for leave to file

a late appeal of his 2016 conviction and deemed his notice of appeal to be

timely filed. The respondent argues that because a direct appeal of that

conviction is now pending, it lacks the requisite finality to qualify as a

“conviction” for immigration purposes under section 101(a)(48)(A) of the

Act, 8 U.S.C. § 1101(a)(48)(A) (2012). 3 The respondent therefore contends

2

The crime of criminal sale of a controlled substance in the third degree in violation of

section 220.39 of the New York Penal Law is a class B felony for which a sentence of

1 year or longer may be imposed. N.Y. Penal Law § 70.00 (McKinney 1993).

3

In this regard, the respondent cites Abreu v. Holder, 378 F. App’x 59 (2d Cir. 2010),

which vacated our decision in Matter of Cardenas Abreu, 24 I&N Dec. 795, 802 (BIA

2009) (en banc), where we held that a pending late-reinstated appeal granted pursuant to

New York’s late appeal procedure did not undermine the finality of the alien’s conviction.

Assuming arguendo that all direct appeals must be exhausted or waived before a conviction

becomes “final” for immigration purposes, the court held that there is no distinction

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that since his 2016 conviction does not support the controlled substance

charge, he is eligible under former section 212(c) to waive removability

based on his 1993 conviction for a crime involving moral turpitude. 4

II. CRIME INVOLVING MORAL TURPITUDE

To determine whether the respondent’s State drug offense is a crime

involving moral turpitude, we employ the categorical approach, which

requires us to “focus on the minimum conduct that has a realistic probability

of being prosecuted under the [elements of a] statute of conviction, rather

than on the facts underlying the respondent’s particular violation of that

statute,” to see whether those elements categorically “fit[] within the generic

definition of a crime involving moral turpitude.” Matter of Silva-Trevino,

26 I&N Dec. 826, 831 (BIA 2016); see also Efstathiadis v. Holder, 752 F.3d

591, 595 (2d Cir. 2014) (per curiam).

“To involve moral turpitude, a crime requires two essential elements:

reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino,

26 I&N Dec. at 834; see also Efstathiadis, 752 F.3d at 595. Conduct is

“reprehensible” if it is “inherently base, vile, or depraved, and contrary to the

accepted rules of morality and the duties owed between persons or to society

in general.” Matter of Silva-Trevino, 26 I&N Dec. at 833 (citation omitted).

A “culpable” mental state is one that requires deliberation or consciousness,

such as specific intent, knowledge, willfulness, or recklessness. Id. at 834.

The respondent was convicted of attempted criminal sale of a controlled

substance in the third degree under New York law. Section 220.39 of the

New York Penal Law provides that a person is guilty of criminal sale “when

he knowingly and unlawfully sells” a specified controlled substance. Under

section 110.00, “[a] person is guilty of an attempt to commit a crime [under

New York law] when, with intent to commit a crime, he engages in conduct

which tends to effect the commission of such crime.” 5

between late-reinstated appeals and direct appeals under New York law. It also remanded

for us to address, in the first instance, whether section 101(a)(48)(A) of the Act is

“ambiguous with respect to the finality requirement.” Abreu, 378 F. App’x at 62.

4

Under 8 C.F.R. § 1003.2(c)(1) (2018), a motion to reopen or remand for “consideration

of an application for relief under section 212(c) of the Act . . . may be granted if the alien

demonstrates that he or she was statutorily eligible for such relief prior to the entry of the

administratively final order of deportation.”

5

For immigration purposes, there is no distinction between a substantive offense and an

attempt to commit it. See Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011) (“An attempt

involves the specific intent to commit the substantive crime, and if commission of the

substantive crime involves moral turpitude, then so does the attempt . . . .”); Matter of

Katsanis, 14 I&N Dec. 266, 269 (BIA 1973) (same).

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We have held that the Federal offense of possession of a controlled

substance with the intent to distribute is a crime involving moral turpitude

because 21 U.S.C. § 841(a)(1) (1988) requires a mental state of knowledge

or intent, and the unlawful distribution of drugs is inherently reprehensible

conduct. Matter of Khourn, 21 I&N Dec. 1041, 1045–47 (BIA 1997); see

also Matter of Gonzalez Romo, 26 I&N Dec. 743, 746–47 (BIA 2016)

(holding that solicitation to possess marijuana for sale under Arizona law is

categorically a crime involving moral turpitude); Matter of Y-, 2 I&N Dec.

600, 602 (BIA 1946) (holding that the unlawful sale of opium is a crime

involving moral turpitude, because it is an act that “creates human misery,

corruption, and moral ruin in the lives of individuals [and] is “necessarily . . .

base and shameful” (citation omitted)). Because the minimum conduct that

has a realistic probability of being prosecuted under the respondent’s State

statute of conviction necessarily involves inherently reprehensible conduct

committed with a mental state of knowledge or intent, we conclude that it is

categorically a crime involving moral turpitude. See Matter of Silva-Trevino,

26 I&N Dec. at 831.

We are unpersuaded by the respondent’s assertion that the intent in selling

a drug may not be evil, such as where the seller’s intent is to relieve another

person’s medical condition. This argument is unavailing, particularly where,

as here, a law that specifically prohibits the intentional unauthorized sale of

drugs has been enacted in order to prevent harm to the general population.

See Matter of Y-, 2 I&N Dec. at 603 (“Because so many persons become

addicts, most of the States, if not all of them, have enacted laws restricting

the right to dispense or prescribe such drugs to registered pharmacists and

physicians for medicinal purposes only and inflicting very severe penalties

for their violation.”); cf. Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA

2007) (holding that trafficking in counterfeit goods or services in violation

of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude because it

requires proof of intent to traffic and results in significant societal harm).

The respondent’s argument that his offense is not a crime involving moral

turpitude because it has no Federal analogue is also misplaced. It is not

necessary to compare a Federal statute to the respondent’s statute of

conviction because the Federal controlled substances schedules and statutes

are not controlling for purposes of determining whether a crime involves

moral turpitude. It is the respondent’s act of attempting to sell a controlled

substance that is morally turpitudinous, not the specific drug involved. See

Matter of Khourn, 21 I&N Dec. at 1047 (stating that “an evil intent is inherent

in the crime of distribution of a controlled substance”). We therefore affirm

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the Immigration Judge’s determination that the respondent is removable

under section 237(a)(2)(A)(i) of the Act. 6

We also affirm the Immigration Judge’s denial of the respondent’s

application for cancellation of removal for lawful permanent residents under

section 240A(a) of the Act. The respondent was admitted in 1992, but he

stopped accruing continuous residence about a year later in 1993, when he

was convicted of “an offense referred to in section 212(a)(2) that render[ed]

[him] . . . removable from the United States under section 237(a)(2)” of the

Act. Section 240A(d)(1) of the Act. Because the respondent cannot establish

that he has continuously resided in the United States for 7 years after being

admitted in any status, he is unable to show that he is eligible for cancellation

of removal pursuant to section 240A(a)(2) of the Act. 7

III. FINALITY OF A CONVICTION

The respondent also seeks a remand based on new evidence that he timely

appealed his 2016 State drug conviction after the New York court granted

him permission to file a late-reinstated appeal. He argues that because his

conviction is now on direct appeal, it is not sufficiently final for immigration

purposes, so it cannot serve as a predicate for his removal or disqualify him

from relief under former section 212(c) of the Act.

A. Statutory Text

We begin our analysis with the words of the statute. The term

“conviction” was statutorily defined in the Act for the first time with the

passage of the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).

Section 101(a)(48)(A) of the Act provides as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt

of the alien entered by a court or, if adjudication of guilt has been withheld, where—

6

The respondent also argues that the Immigration Judge violated his due process rights

by amending the DHS’s factual allegation for the charge of removability based on his 1993

conviction for attempted sale of a controlled substance. We disagree. The Immigration

Judge made a finding that the DHS could not show that the specific controlled substance

was cocaine under the categorical approach, to which the DHS made no objection. The

Immigration Judge therefore did not violate the respondent’s right to due process by

striking the reference to “cocaine” from the factual allegation after properly finding that

the DHS could not establish the specific substance involved.

7

In light of this disposition, we need not address the respondent’s remaining contentions

regarding his eligibility for cancellation of removal.

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(i) a judge or jury has found the alien guilty or the alien has entered a plea of

guilty or nolo contendere or has admitted sufficient facts to warrant a finding of

guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the

alien’s liberty to be imposed.

B. History of Section 101(a)(48)(A) of the Act

Prior to the passage of the IIRIRA, it was well established that a

conviction did not attain finality for immigration purposes and therefore that

the civil consequence of deportation did not attach until the alien had either

exhausted or waived the right to direct appellate review. See, e.g., White

v. INS, 17 F.3d 475, 479 (1st Cir. 1994); Martinez-Montoya v. INS, 904 F.2d

1018, 1025 (5th Cir. 1990); Morales-Alvarado v. INS, 655 F.2d 172, 174–75

(9th Cir. 1981); Marino v. INS, 537 F.2d 686, 691–92 (2d Cir. 1976);

Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975); Will v. INS, 447

F.2d 529, 532–33 (7th Cir. 1971); Matter of Thomas, 21 I&N Dec. 20, 21 n.1

(BIA 1995); Matter of Polanco, 20 I&N Dec. 894, 895–96 (BIA 1994);

Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988). This principle was

derived from the Supreme Court’s decision in Pino v. Landon, 349 U.S. 901,

901 (1955) (per curiam), in which the Court reversed the decision of the

lower court based on insufficient evidence in the record “that the conviction

has attained such finality as to support an order of deportation within the

contemplation of [former section] 241 of the Immigration and Nationality

Act, 8 U.S.C.A. § 1251 [(1952)].”

Our decision in Matter of Ozkok, 19 I&N Dec. at 551–52, which predated

the IIRIRA, set forth the prevailing standard to evaluate whether a conviction

exists for immigration purposes. Under Ozkok, we considered that a person

was convicted if “the court has adjudicated him guilty or has entered a formal

judgment of guilt.” Id. at 551. However, where adjudication of guilt was

withheld, we required all of the following elements to be present:

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or

nolo contendere or has admitted sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment, penalty, or restraint on the

person’s liberty to be imposed (including but not limited to incarceration, probation,

a fine or restitution, or community-based sanctions such as a rehabilitation program,

a work-release or study-release program, revocation or suspension of a driver’s

license, deprivation of nonessential activities or privileges, or community service);

and

(3) a judgment or adjudication of guilt may be entered if the person violates the

terms of his probation or fails to comply with the requirements of the court’s order,

without availability of further proceedings regarding the person’s guilt or innocence

of the original charge.

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Id. at 551–52. Although the standard did not explicitly address finality, we

recognized the long-standing requirement that a conviction must have

sufficient finality to be considered a valid predicate for immigration

consequences to attach. Id. at 552 n.7 (“It is well established that 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.”).

Congress’ clear reliance on Ozkok in defining the term “conviction”

indicates that it was fully aware of the precedent decisions of the Supreme

Court, the Federal circuit courts, and the Board concerning the finality

requirement. See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]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.”). Its

nearly verbatim adoption of the Ozkok language “is akin to reenacting a

portion of an existing statute while intending to preserve its attendant

administrative and judicial interpretations.” Matter of Cardenas Abreu,

24 I&N Dec. 795, 814 (BIA 2009) (en banc) (Greer, dissenting), vacated,

378 F. App’x 59, 62 (2d Cir. 2010); see also Alaska v. Native Vill. of Venetie

Tribal Gov’t, 522 U.S. 520, 530–31 (1998) (indicating that Congress

implicitly intends to preserve the definition of terms when it adopts language

verbatim from prior case law defining the same terms). See generally

Williams v. Taylor, 529 U.S. 420, 434 (2000) (“When the words of the Court

are used in a later statute governing the same subject matter, it is respectful

of Congress and of the Court’s own processes to give the words the same

meaning in the absence of specific direction to the contrary.”). However, we

must consider the language of the statute to determine whether it is plain and

unambiguous with respect to whether all direct appeals as of right must have

been exhausted or waived for a conviction to be sufficiently “final” for

immigration purposes. See Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997).

C. Ambiguity of the Statute

“In ascertaining the plain meaning of the statute, [we] must look to the

particular statutory language at issue, as well as the language and design of

the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988). In order to determine Congress’ intent, we may consider the overall

“object and policy” of the law and examine the legislative history.

Massachusetts v. Morash, 490 U.S. 107, 115 (1989); see also Matter of Punu,

22 I&N Dec. 224, 227 (BIA 1998).

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There is no mention of finality in the definition of a “conviction” in

section 101(a)(48)(A) of the Act. Such silence in the statutory scheme may

create ambiguity. See Barnhart v. Walton, 535 U.S. 212, 218 (2002) (“[A

statute’s] silence . . . normally creates ambiguity. It does not resolve it.”).

Congress’ silence regarding finality in section 101(a)(48)(A) clearly does

result in ambiguity.

When Congress enacted the current definition of a “conviction” at section

101(a)(48)(A), it adopted almost verbatim the language in Ozkok, except for

the third prong of the standard regarding deferred or withheld adjudications.

The legislative history of the IIRIRA reflects a clear congressional intent to

eliminate the third prong for the specific purpose of avoiding the inconsistent

outcomes that had resulted from the differing criminal procedures for

deferred adjudications among the various States. H.R. Rep. No. 104-879, at

123 (1997), 1997 WL 9288 at *123 (stating that section 101(a)(48)(A) makes

it “easier to remove criminal aliens, regardless of specific procedures in

States for deferred adjudication”); H.R. Rep. No. 104-828, at 224 (1996)

(Conf. Rep.), 1996 WL 563320 at *224 (“Joint Explanatory Statement”)

(stating that Ozkok “does not go far enough to address situations where a

judgment of guilt . . . is suspended, conditioned upon the alien’s future good

behavior”); see also Matter of Punu, 22 I&N Dec. at 227. This history does

not, however, evidence any intent to abandon the remaining law set forth in

Ozkok regarding the meaning of the term “conviction”—including the

question of finality. See Matter of Cardenas Abreu, 24 I&N Dec. at 798

(“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.”).

A proper regard for fundamental fairness leads us to expect that Congress

would be clear if its intent was to eliminate the long-standing finality

requirement regarding the right to appeal a conviction. Cf. Alim v. Gonzales,

446 F.3d 1239, 1249 (11th Cir. 2006) (stating that deeming a conviction to

be final for immigration purposes after it was “vacated on appeal (with a

judgment of acquittal entered) due to insufficient evidence” is “so foreign,

so antithetical, to the long-standing principles underlying our criminal justice

system and our notions of due process that we would expect Congress to have

spoken very clearly if it intended to effect such results”). Because it has been

silent with respect to the finality requirement, the resulting ambiguity in

section 101(a)(48)(A) of the Act suggests that Congress intended to retain

this well-established principle.

As the dissent notes, Congress preserved the finality requirement

elsewhere in the Act. See, e.g., sections 208(b)(2)(A)(ii), 237(a)(2)(D),

238(c)(3)(A)(iii), 241(b)(3)(B)(ii) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii),

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1227(a)(2)(D), 1228(c)(3)(A)(iii), 1231(b)(3)(B)(ii) (2012). However, most

of those statutes already contained finality language that was simply

carried over when the IIRIRA was enacted. See former sections 241(a)(2)(D),

242A(d)(3)(A)(iii), 243(h)(2)(B) of the Act, 8 U.S.C. §§ 1251(a)(2)(D),

1252a(d)(3)(A)(iii), 1253(h)(2)(B) (1994). Therefore, we are not persuaded

that the mention of finality in other parts of the Act and its absence in section

101(a)(48)(A) is dispositive of whether finality is required. Instead, we

regard these references to finality as clarifying language that tends to shed

light on what Congress means in the Act when it uses the term “conviction.”

This is particularly so given the history of the finality requirement and the

notable lack of any stated or apparent purpose for preserving it in some parts

of the statute and not in others. See Matter of Cardenas Abreu, 24 I&N Dec.

at 820 (Greer, dissenting) (“If Congress had intended to remove the finality

requirement under the Act, it presumably would have done so uniformly

throughout the Act, rather than leaving finality intact in other provisions

without apparent justification.”).

Thus, we do not discern any affirmative congressional intent from the fact

that Congress did not add the word “final” when it adopted the Ozkok

language verbatim in its new definition of a “conviction,” while preserving

the language of existing provisions that referenced a “final” conviction. This

situation is distinct from other circumstances where Congress has included

language in one section of a statute and omitted it elsewhere. We therefore

do not find any applicability of the “canon of statutory construction that

‘[w]here Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion or

exclusion.’” Matter of M-H-Z-, 26 I&N Dec. 757, 761 (BIA 2016) (quoting

INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)).

Moreover, although the statute is also silent with respect to convictions

that have been vacated on the merits, we have consistently declined to strictly

interpret the language of section 101(a)(48)(A) of the Act to exclude any

exception in that regard. See, e.g., Matter of Pickering, 23 I&N Dec. 621,

624–25 (BIA 2003) (distinguishing convictions that have been set aside for

reasons related to a defect in the underlying criminal proceedings, which are

not final for immigration purposes, from those vacated because of

rehabilitation or immigration hardship), rev’d on other grounds, 465 F.3d

263, 269 (6th Cir. 2006); Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378,

1379–80 (BIA 2000) (holding that there was no basis for removability where

a criminal court order stated that the alien’s conviction was vacated based on

a legal defect). Most recently, in light of “Congress’ silence regarding

vacated convictions in section 101(a)(48)(A) of the Act,” we reiterated that

convictions vacated for procedural or substantive defects in the underlying

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criminal proceedings are not valid for immigration purposes. Matter of

Marquez Conde, 27 I&N Dec. 251, 254–55 (BIA 2018). We continue to

view the analysis in Marquez Conde, which rejected a literal reading of the

statute, as the correct interpretation.

D. Decisions of the Circuit Courts

The ambiguity in the statutory definition is highlighted by the circuit

courts’ disparate interpretations of section 101(a)(48)(A) of the Act. See

Matter of Cardenas Abreu, 24 I&N Dec. at 818 (Greer, dissenting). For

example, the United States Courts of Appeals for the Second Circuit, in

whose jurisdiction this case arises, has presented conflicting views in dicta

on whether the finality requirement survived enactment of the IIRIRA.

Compare Puello v. Bureau of Citizen. & Immigr. Servs., 511 F.3d 324, 332

(2d Cir. 2007) (“IIRIRA . . . eliminate[d] the requirement that all direct

appeals be exhausted or waived before a conviction is considered final under

the statute.”), 8 with Walcott v. Chertoff, 517 F.3d 149, 154 (2d Cir. 2008)

(accepting the Government’s argument that an alien’s “March 1996

conviction was not deemed final for immigration purposes until July 1, 1998,

when direct appellate review of it was exhausted”). Moreover, in vacating

our decision in Matter of Cardenas Abreu, the Second Circuit has invited us

to address on remand whether the finality requirement continues to exist

under section 101(a)(48)(A). See Abreu, 378 F. App’x at 62. 9

Other circuits have resolved this issue in favor of the continued vitality

of the finality requirement. In the clearest statement on the question of

finality since our publication of Matter of Cardenas Abreu, the Third Circuit

concluded that an alien’s conviction is not sufficiently final for immigration

purposes until the right to direct appellate review has been exhausted or

waived. Orabi v. U.S. Att’y Gen., 738 F.3d 535, 541–42 (3d Cir. 2014)

(“[W]e hold that the IIRIRA’s elimination of the finality requirement in the

case of deferred adjudications does not disturb the longstanding finality rule

for direct appeals recognized in Ozkok . . . .”). This is the only circuit

precedent to address the finality question in the context of a direct appeal as

a matter of right in immigration proceedings.

8

As the dissent noted in Matter of Cardenas Abreu, 24 I&N Dec. at 818–19, Puello did

not concern the appeal of a conviction. The alien entered a guilty plea and challenged the

effective date of the conviction, so that case did not involve the issue currently before us.

9

During the pendency of this appeal, the Second Circuit issued an unpublished decision

noting its “repeated[] acknowledg[ment] that Puello’s statement regarding finality was

merely dicta and that the question remains open.” Mohamed v. Sessions, 727 F. App’x 32,

34 (2d Cir. 2018). Citing a number of its prior decisions in this regard, the court stated that

its “conflicting history of the issue” made it “clear . . . that the question remains quite

unsettled.” Id.

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However, in deciding an alien’s appeal from his unlawful reentry

conviction, the Sixth Circuit concluded that the finality requirement was

preserved in the case of a direct appeal. 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. The defendant’s exercise of

post-conviction remedies does not, however, undermine the finality of his

conviction.” (citations omitted)). In addition, while deferring to our

interpretation that a “guilty-filed disposition” under Massachusetts law fell

under the second prong of the statute, the First Circuit suggested that there

may not be a final conviction in the case of an appeal from the entry of a

formal judgment of guilt under the first prong. Griffiths v. INS, 243 F.3d 45,

53–54 (1st Cir. 2001).

In the remaining circuits that have addressed the question of finality, the

issue was not presented in the context of a direct appeal pending from a trial

court’s finding of guilt. See Planes v. Holder, 652 F.3d 991, 994–97 (9th

Cir. 2011) (addressing a situation where the alien’s appeal was from the

sentence imposed following his guilty plea, rather than from his conviction);

Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290–91 (5th Cir. 2007)

(noting that the alien’s conviction had been affirmed while on petition for

review, but stating that even though his appeal was pending at the time

of the Board’s decision, finality is no longer required); United States

v. Saenz-Gomez, 472 F.3d 791, 793–94 (10th Cir. 2007) (holding, in the

context of a sentence enhancement for illegal reentry, that where the alien’s

appeal from his aggravated felony conviction was still pending at the time of

his removal—but was later dismissed—it was final when he was removed);

Montenegro v. Ashcroft, 355 F.3d 1035, 1037–38 (7th Cir. 2004) (per

curiam) (holding that the alien’s conviction was final at the time he was

ordered removed, despite the fact that he then had two petitions pending—a

writ of certiorari and an appeal from the denial of his post-conviction

petition—both of which were later denied).

However, as we noted in Matter of Marquez Conde, 27 I&N Dec. at 253,

of the circuit courts that have addressed whether section 101(a)(48)(A) of the

Act permits an exception for convictions vacated on the legal merits, all but

the Fifth Circuit have adopted the approach we took in Matter of Pickering.

See, e.g., Andrade-Zamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016)

(citing Pickering in concluding that a “conviction will still stand for

immigration purposes despite its vacatur” if it was vacated “for a reason

unrelated to the merits of the case”); Dung Phan v. Holder, 667 F.3d 448,

452 (4th Cir. 2012) (holding that the alien’s conviction was set aside for

rehabilitative purposes, but recognizing that “[w]here a conviction is vacated

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‘based on a defect in the underlying criminal proceedings,’ the conviction is

‘no longer’” (quoting Matter of Pickering, 23 I&N Dec. at 624)).

Emphasizing Congress’ silence on the effect to be given a conviction that

has been vacated on the merits, the Eleventh Circuit found our interpretation

of the statute in Pickering to be reasonable. Alim, 446 F.3d at 1247–50.

Congress has similarly been silent with regard to the effect of a direct appeal

on an alien’s conviction. See generally Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208, 222 (2009) (“It is eminently reasonable to conclude that [a

statute’s] silence is meant to convey nothing more than a refusal to tie the

agency’s hands . . . .”); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 843 (1984) (stating that where a “statute is silent or ambiguous

with respect to the specific issue,” an agency’s interpretation should be given

deference if it is based on a permissible construction of the statute).

In view of this congressional silence and the fact that “the circuit court

decisions . . . offer conflicting statements” regarding the finality requirement,

we have a “responsibility to interpret the Act.” Matter of Cardenas Abreu,

24 I&N Dec. at 820 (Greer, dissenting). The language of section

101(a)(48)(A) of the Act is neither plain nor subject to an ordinary meaning,

and Congress’ intent regarding it is unclear. We must therefore craft a

reasonable interpretation of the language that effectuates congressional intent

as nearly as can be discerned. Matter of Punu, 22 I&N Dec. at 226 (citing

Chevron, 467 U.S. at 842–43).

We have examined the language of section 101(a)(48)(A), its legislative

history, and its relation to the design of the Act as a whole. We have also

considered the prior Federal and Board case law regarding the finality of a

conviction, of which Congress was aware when it enacted the IIRIRA. These

and our careful application of the rules of statutory construction lead us to

conclude that, in incorporating the language of the Board’s precedent in

Ozkok to define the term “conviction,” Congress did not intend to abandon

the prior interpretation regarding the finality requirement. Consequently, the

long-standing requirement that a conviction must attain sufficient finality

before immigration consequences attach has survived the enactment of the

IIRIRA. 10

10

Because we conclude that section 101(a)(48)(A) of the Act is ambiguous with respect

to whether all direct appeals must have been exhausted or waived for a conviction to be

final for immigration purposes, our construction of the statute is entitled to deference so

long as our interpretation is reasonable, at least in the Second Circuit, which has not directly

addressed the finality issue. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps

an agency construction otherwise entitled to Chevron deference only if the prior court

decision holds that its construction follows from the unambiguous terms of the statute and

thus leaves no room for agency discretion.”); see also Chevron, 467 U.S. at 843.

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E. Requirements for Finality of a Conviction

In holding that the finality requirement continues to apply after the

enactment of the IIRIRA, we emphasize that a conviction does not attain a

sufficient degree of finality for immigration purposes until the right to direct

appellate review on the merits of the conviction has been exhausted or

waived. 11 Consequently, absent proof of a waiver of appeal rights, a

conviction does not achieve finality for immigration purposes until the time

for filing an initial direct appeal has expired under the laws of the applicable

jurisdiction. However, once the DHS has established that a respondent has

a criminal conviction at the trial level and that the time for filing a direct

appeal has passed, a presumption arises that the conviction is final for

immigration purposes.

To rebut that presumption, a respondent must come forward with

evidence that an appeal has been filed within the prescribed deadline,

including any extensions or permissive filings granted by the appellate

court. 12 He or she must also present evidence that the appeal relates to the

issue of guilt or innocence or concerns a substantive defect in the criminal

proceedings. See Matter of Marquez Conde, 27 I&N Dec. at 255 (reaffirming

Matter of Pickering and reiterating that “convictions that have been vacated

based on procedural and substantive defects in the underlying criminal

proceeding [are] no longer valid for immigration purposes”); see also Matter

of Rodriguez-Ruiz, 22 I&N Dec. at 1379–80 (giving effect to the alien’s

vacated conviction where there was evidence by way of a court order that the

conviction was vacated on the legal merits of the underlying criminal

proceedings).

11

A review of State law regarding filing deadlines for direct appeals reveals that, currently,

the deadlines for direct appeals vary in 49 States between 20 and 90 days after entry of a

final judgment or order.

12

Under the current criminal procedure rules in many jurisdictions, within a short period

of time after conviction, a defendant may seek some form of late-filed appeal beyond the

initial period for filing a direct appeal as of right. See, e.g., Ariz. R. Crim. P. 31.3 (allowing

the Arizona appellate courts to suspend the 20-day filing deadline for good cause shown);

N.J. Ct. R. 2:4-4(a) (allowing the New Jersey appellate courts to extend the 45-day filing

deadline by not more than 30 days upon a showing of good cause and the absence of

prejudice); Mass. R. App. P. 4(c) (allowing Massachusetts lower courts to extend the

30-day time to file a notice of appeal upon a “showing of excusable neglect”), 14(b) (giving

appellate courts authority to “enlarge the time” for filing an appeal to 1 year “for good

cause shown”); Tenn. R. App. P. 4(a) (stating that “in all criminal cases the ‘notice of

appeal’ document is not jurisdictional and the timely filing of such document may be

waived in the interest of justice”). Eighteen jurisdictions provide for an automatic waiver

of the appeal if the defendant fails to timely file a direct appeal of a criminal conviction.

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Appeals, including direct appeals, and collateral attacks that do not relate

to the underlying merits of the conviction will not be given effect to eliminate

the finality of the conviction. Such appeals include those that relate only to

the alien’s sentence or that seek to reduce the charges, to ameliorate the

conviction for rehabilitative purposes, or to alleviate immigration hardships,

and any other appeals that do not challenge the merits of the conviction. See

Matter of Roldan, 22 I&N Dec. 512, 521–24 (BIA 1999) (holding that under

the statutory definition of a “conviction” in section 101(a)(48)(A) of the Act,

no effect is to be given in immigration proceedings to a State action that

purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove

a guilty plea or other record of guilt or conviction by operation of a State

rehabilitative statute); see also Matter of Pickering, 23 I&N Dec. at 624–25

(holding that a conviction set aside for reasons solely related to

post-conviction events such as rehabilitation or immigration hardships will

remain a conviction for immigration purposes). 13

In this case, the respondent submitted evidence indicating that he filed a

motion for an extension of the appeal deadline and that the motion was

granted and the appeal was permitted by the New York appellate court. 14

Under these circumstances, we will remand this case to the Immigration

Judge to consider the status of the pending appeal and its basis and to

determine whether a continuance may be appropriate. See Matter of

L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018). In this regard, the respondent

and the DHS should be given an opportunity to present any additional

documentary and testimonial evidence they wish to offer in assisting the

Immigration Judge.

Accordingly, the appeal from the Immigration Judge’s determination that

the respondent is removable under section 237(a)(2)(A)(i) of the Act and

from his denial of the respondent’s application for cancellation of removal

under section 240A(a) of the Act will be dismissed. The respondent’s motion

to remand based on new evidence will be granted.

13

The rationale underlying this position is that such challenges do not comport with

congressional intent regarding the definition of a “conviction” in the Act. See Matter of

Pickering, 23 I&N Dec. at 623; Matter of Roldan, 22 I&N Dec. at 521.

14

The respondent submitted this motion pursuant to section 460.30 of the New York

Criminal Procedure Law, which sets forth the circumstances under which appeals filed

beyond the deadline proscribed in section 460.10 will be granted and treated as direct

appeals as of right. These circumstances include improper conduct by a public servant or

the defendant’s attorney, the death or disability of the attorney, or the inability of an

incarcerated defendant to communicate with an attorney regarding the appeal through no

lack of due diligence or fault of the attorney or the defendant.

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ORDER: The appeal is dismissed in part and the motion to remand is

granted.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

CONCURRING AND DISSENTING OPINION: Garry D. Malphrus,

Board Member

I concur with the majority’s determination that the respondent is

removable as charged under section 237(a)(2)(A)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien convicted of

a crime involving moral turpitude. However, I would dismiss the appeal and

not remand because I cannot agree with the majority’s treatment of the

finality issue. The plain language of the definition of the term “conviction”

at section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2012), does

not require that appeals be exhausted or waived for a conviction to be final

for immigration purposes.

I agree with the majority that, prior to the enactment of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), the Board and

Federal courts had long held that a conviction only became final for

immigration purposes once direct appellate review had been exhausted or

waived. See Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988); see

also Matter of Polanco, 20 I&N Dec. 894, 895–96 (BIA 1994) (collecting

cases). However, as part of the IIRIRA, Congress for the first time created a

statutory definition of the term “conviction.” IIRIRA § 322(a)(1), 110 Stat.

at 3009-628 to 3009-629. Specifically, the Act provides that the “term

‘conviction’ means, with respect to an alien, a formal judgment of guilt of

the alien entered by a court.” Section 101(a)(48)(A) of the Act. 1

We have a duty to follow the plain and unambiguous language of the

statute, and section 101(a)(48)(A) is not ambiguous. See K Mart Corp.

v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“If the statute is clear and

unambiguous ‘that is the end of the matter, for the court, as well as

the agency, must give effect to the unambiguously expressed intent

of Congress.’” (citation omitted)). The part of the definition at issue here

only requires “a formal judgment of guilt . . . entered by a court.” Section

1

The remaining portion of this definition, which pertains to circumstances where an

“adjudication of guilt has been withheld,” is inapplicable here. See section 101(a)(48)(A)

of the Act.

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101(a)(48)(A) of the Act. The statute requires a “formal” judgment, not a

“final” judgment, and it makes no reference to a conviction being “final.” 2

In addition, the use of the term “conviction” in itself does not implicitly

denote the existence of such a requirement. See Deal v. United States, 508

U.S. 129, 131 (1993) (“[T]he word ‘conviction’ can mean either the finding

of guilt or the entry of a final judgment on that finding.”). Thus, in looking

to the plain language of the statute, there is simply no requirement that all

appeals must be exhausted or waived before a conviction is final for

immigration purposes. See Planes v. Holder, 652 F.3d 991, 996–97 (9th Cir.

2011). 3

The majority states that Congress did not intend to alter the judicial and

administrative interpretations regarding the finality of a conviction when it

adopted a definition of a “conviction” for the first time in the Act. However,

the plain language of section 101(a)(48)(A) evidences Congress’ intent.

Although there is a general rule of statutory construction that Congress

intends to incorporate well-settled judicial and administrative interpretations

into a statute when it reenacts an existing statute without changes, see, e.g.,

Bragdon v. Abbott, 524 U.S. 624, 644–45 (1998), that rule is not applicable

here. In adding section 101(a)(48)(A) to the Act, Congress was not

reenacting an existing statute. Instead, it was adopting a definition of

“conviction” for the first time.

The majority cites to Alaska v. Native Village of Venetie Tribal

Government, 522 U.S. 520 (1998), to support its view that this rule should

be applied to judicial interpretations when Congress adopts a definition for

the first time. However, that case involved a situation far different from the

one before us. The legislative history of the statute at issue there explicitly

stated that Congress intended to adopt the Supreme Court’s definition of the

term “Indian country” verbatim. Id. at 530 (stating that the statute’s

2

In the Federal criminal context, “[t]he sentence is the judgment,” and thus a “formal

judgment of guilt” is entered at the time a court imposes a sentence. Burton v. Stewart,

549 U.S. 147, 156 (2007) (per curiam) (citation omitted); Johnson v. United States, 623

F.3d 41, 45 (2d Cir. 2010) (noting that the terms “sentence” and “judgment” “are often

used interchangeably”); Black’s Law Dictionary (10th ed. 2014) (defining “sentence” as

“[t]he judgment that a court formally pronounces after finding a criminal defendant

guilty; . . . [a]lso termed judgment of conviction”). Thus, Congress’ use of the term “formal

judgment” in section 101(a)(48)(A) indicates that it intended such a judgment to be a

“conviction” for immigration purposes, even if it had not attained finality.

3

It is significant, moreover, that Congress defined the term “conviction” by saying what

it “means,” rather than what it “includes.” Unlike the term “includes,” which “is usually a

term of enlargement,” the word “means” limits the scope of a statutory definition.

Burgess v. United States, 553 U.S. 124, 131 n.3 (2008); see also Matter of Cardenas Abreu,

24 I&N Dec. 795, 805 (BIA 2009) (en banc) (Pauley, concurring), vacated, 378 F. App’x

59 (2d Cir. 2010).

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“definition of Indian country is based on [the] latest construction of the term

by the United States Supreme Court” (citation omitted) (internal quotation

mark omitted)).

In our case, the pertinent legislative history is silent regarding finality.

Furthermore, Congress did not adopt those prior interpretations verbatim.

When Congress defined the term “conviction” for the first time in the Act, it

significantly modified the Board’s definition in Matter of Ozkok, 19 I&N

Dec. at 551–52, rejecting that case’s approach to deferred adjudications. See

Matter of Cardenas Abreu, 24 I&N Dec. 795, 805 (BIA 2009) (en banc)

(Pauley, concurring), vacated, 378 F. App’x 59 (2d Cir. 2010). We cannot

assume that Congress deferred to our interpretation when it enacted section

101(a)(48)(A). Nor may we read a finality requirement into a provision that

is not there. See Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th

Cir. 2012) (“When Congress legislates on a clean slate, it need not explicitly

abrogate every related policy put in place by an agency.”). 4

Moreover, looking to the “broader context of the statute as a whole,”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997), other sections of the

Act indicate that the majority’s approach is not the correct interpretation.

Although Congress did not use the term “final” in section 101(a)(48)(A) of

the Act, it has included that term in other provisions of the Act. For example,

Congress provided for the removal of nonviolent offenders who are

imprisoned and subject to a “final conviction” in section 241(a)(4)(B)(i) of

the Act, 8 U.S.C. § 1231(a)(4)(B)(i) (2012) (emphasis added). It likewise

4

This situation is analogous to how the circuit courts have determined that Congress

abrogated the departure bar regulations at 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1)

(2018)—namely, by enacting new legislation that conflicted with the prior administrative

interpretation. Specifically, when Congress enacted section 240(c)(7)(A) of the Act,

8 U.S.C. § 1229a(c)(7)(A) (2012), it adopted language from prior regulations that gave

aliens the right to file one motion to reopen, but it declined to adopt language from those

regulations indicating that a motion was automatically withdrawn upon an alien’s departure

from the United States. After concluding that the departure bar regulations conflict with

the plain language of the newly enacted section 240(c)(7)(A), most circuit courts have held

that the administrative interpretation embodied in the prior regulations did not survive

the enactment of the IIRIRA. See Toor v. Lynch, 789 F.3d 1055, 1061 (9th Cir. 2015)

(“Congress was undoubtedly aware of the pre-existing regulatory post-departure bar. . . .

[T]herefore, the ‘proper inference’ is that Congress considered whether to bar motions to

reopen . . . from noncitizens who had departed the United States, and chose not to do

so.” (citation omitted) (internal quotation mark omitted)); Santana v. Holder, 731 F.3d 50,

58–59 (1st Cir. 2013); Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012); Lin

v. U.S. Att’y Gen., 681 F.3d 1236, 1241 (11th Cir. 2012); Contreras-Bocanegra, 678 F.3d

at 819; Prestol Espinal v. Att’y Gen., 653 F.3d 213, 217–18 (3d Cir. 2011); William

v. Gonzales, 499 F.3d 329, 333–34 (4th Cir. 2007). If the departure bar did not survive the

enactment of the IIRIRA, it is not reasonable to conclude that our prior interpretation

regarding finality survived the enactment of section 101(a)(48)(A) of the Act.

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provided at section 237(a)(2)(D) that an “alien who at any time has been

convicted (the judgment on such conviction becoming final) of, or has been

so convicted of a conspiracy or attempt to violate” certain national security

statutes is deportable. (Emphasis added.) Additionally, an alien is ineligible

for asylum and withholding of removal under the Act if that alien is

“convicted by a final judgment of a particularly serious crime.” Sections

208(b)(2)(A)(ii), 241(b)(3)(B)(ii) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1231(b)(3)(B)(ii) (2012) (emphasis added).

The inclusion of the term “final” in the above provisions, and its

exclusion from section 101(a)(48)(A), indicates that Congress did not intend

for a “conviction” to be final before it has immigration consequences.

“[W]here Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion or

exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (alteration

in original) (citation omitted); see also Jama v. ICE, 543 U.S. 335, 341 (2005)

(“We do not lightly assume that Congress has omitted from its adopted text

requirements that it nonetheless intends to apply, and our reluctance is even

greater when Congress has shown elsewhere in the same statute that it knows

how to make such a requirement manifest.”); Matter of M-H-Z-, 26 I&N

Dec. 757, 761 (BIA 2016). The majority’s contrary conclusion—that the

inclusion of the word “final” in other sections of the Act to describe a

“conviction,” and its exclusion from section 101(a)(48)(A), implies that the

latter contains a finality requirement—turns this long-standing canon of

statutory interpretation on its head. 5

The majority effectively concedes that its result is not based on the plain

language of the statute. Rather, it regards congressional silence, legislative

history and prior judicial interpretations as providing support for its finding

that the statute is ambiguous. However, based on long-standing principles

of statutory construction, we have a duty to first assess whether the language

of the statute is clear and unambiguous, and if it is, we must follow that

language as long as it would not lead to an absurd or bizarre result. FDA

5

Further, although the regulations do not contain a provision that addresses the term

“conviction” in the context of removal proceedings under section 240 of the Act, they

support the argument that finality is not required in our case. For instance, by regulation,

an alien who is subject to expedited removal must have been “convicted (as defined in

section 101(a)(48)(A) . . .) of an aggravated felony and such conviction has become final.”

8 C.F.R. § 1238.1(b)(iii) (2018) (emphasis added). “If the definition of a ‘conviction’

enacted by the IIRIRA bore the understanding . . . that a conviction must have attained

finality, it would have been unnecessary for the regulation to specify that the conviction

must have become final.” Matter of Cardenas Abreu, 24 I&N Dec. at 807 (Pauley,

concurring).

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v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); Demarest

v. Manspeaker, 498 U.S. 184, 191 (1991). 6 Section 101(a)(48)(A) is

unambiguous on its face, and no circuit court has held that applying the plain

and unambiguous language of that provision would lead to absurd results.

See, e.g., Planes, 652 F.3d at 996 (collecting cases holding that the plain

language of section 101(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”).

In this case, no absurd results would ensue from applying the plain

language of this provision. The respondent, who was detained below and

remains detained on appeal, was ordered removed, based in part on a

conviction that was clearly final during his removal hearing. While his case

was pending before us on appeal, he filed a motion for a late-reinstated appeal

in State court, which was granted. Also, contrary to the majority’s

implication, no fundamental unfairness would ensue. If the respondent’s

conviction is reversed by the State court, it will no longer be valid for

immigration purposes. See, e.g., Matter of Marquez Conde, 27 I&N Dec.

251, 255 (BIA 2018) (holding that “convictions that have been vacated based

on procedural and substantive defects in the underlying criminal proceeding

[are] no longer valid for immigration purposes”). Thus, any unfairness that

may ensue from ordering the respondent removed based on his conviction

now could be remedied if he successfully overturns his conviction before the

State court. This is one reason why the Department of Homeland Security

(“DHS”) might choose for policy or prudential reasons not to proceed with

removal proceedings until direct appeals have been exhausted.

The approach that I would take is consistent with the clear majority of

circuit courts that have addressed finality in the immigration context. Several

courts have expressly held that the judicially created finality requirement has

been superseded by the IIRIRA, based on the plain language of the Act, and

that a conviction exists for immigration purposes, even if a direct appeal is

pending in criminal court. See Planes, 652 F.3d at 994–96; United States

v. Saenz-Gomez, 472 F.3d 791, 794 (10th Cir. 2007) (holding that “the literal

language of [section 101(a)(48)(A)] controls” the meaning of “conviction”

and declining to read a finality requirement into that provision “[b]ecause the

plain language of [the statute] is clear and does not lead to an irrational

result”); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per

6

Notably, the facts of Demarest are supportive of the reasoning and result of this dissent.

In that case, the Supreme Court applied the plain language of the statute to find that State

prisoners who testified at Federal trials pursuant to a writ of habeas corpus in 18 U.S.C.

§ 1821 (1988) were entitled to witness fees, rejecting long-standing administrative and

judicial interpretations to the contrary.

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curiam) (holding that the “IIRIRA eliminated the finality requirement for a

conviction”). 7

The majority attempts to distinguish this authority by stating that these

decisions could have been decided on narrower grounds. However, circuit

courts, as well as the Board, render published decisions where the holding is

arguably broader than necessary to resolve the case at hand, and even where

that is true, it does not turn a holding into dicta. Moreover, the distinctions

cited by the majority have no bearing on the express holdings in those

decisions that the finality requirement did not survive the enactment of the

IIRIRA and that a conviction exists for immigration purposes, even if it is

pending on direct appeal.

Some circuits have indicated in dicta that the finality rule did not survive

the enactment of the IIRIRA. See Moosa v. INS, 171 F.3d 994, 1009 (5th

Cir. 1999) (“There is no indication that the finality requirement imposed . . .

prior to 1996 . . . survives the new definition of ‘conviction’ found in IIRIRA

. . . .”); see also Griffiths v. INS, 243 F.3d 45, 49–51 (1st Cir. 2001) (reserving

the question but citing Moosa approvingly). Most relevant here, the United

States Court of Appeals for the Second Circuit, in whose jurisdiction this

case arises, has stated in dicta that the IIRIRA “eliminate[d] the requirement

that all direct appeals be exhausted or waived before a conviction is

considered final under the statute.” Puello v. Bureau of Citizen. & Immigr.

Servs., 511 F.3d 324, 332 (2d Cir. 2007). But see Walcott v. Chertoff, 517

F.3d 149, 154 (2d Cir. 2008) (accepting the DHS’s argument that an alien’s

“March 1996 conviction was not deemed final for immigration purposes until

July 1, 1998, when direct appellate review of it was exhausted”). 8 8 The

majority attempts to distinguish these cases, but the distinctions it draws are

irrelevant to how these courts treated the finality issue. 9 The majority’s

creative discussion of the circuit court decisions that have addressed the

7

In these circuits, the majority’s interpretation of the term “conviction” in section

101(a)(48)(A) will not be entitled to deference because these circuits relied on the plain

language of the statute. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967 (2005).

8

The majority notes that a divided panel of the Second Circuit recently stated in an

unpublished decision that the question “remains open” whether the finality requirement

continues to apply after the enactment of the IIRIRA and remanded for us to consider the

issue. Mohamed v. Sessions, 727 F. App’x 32, 34 (2d Cir. 2018). By contrast, the dissent

would not have remanded and would have held that the plain language of section

101(a)(48)(A) eliminated the finality requirement. Id. at 34–35 (Sullivan, J., dissenting).

9

The majority cites to United States v. Garcia-Echaverria, 374 F.3d 440 (6th Cir. 2004),

as an example of how the Sixth Circuit has preserved the finality requirement. Although

the Sixth Circuit concluded in dicta that convictions must be “final,” it based this

conclusion on the law prior to the IIRIRA, rather than the statutory definition of a

“conviction” at section 101(a)(48)(A). Id. at 445.

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finality issue gives the appearance that there is much more uncertainty within

circuits on this issue than there actually is.

The only circuit that has held that the finality requirement survived

the enactment of the IIRIRA is the Third Circuit. See Orabi v. U.S. Att’y

Gen., 738 F.3d 535, 540–41 (3d Cir. 2014). There the court relied primarily

on legislative history discussing Congress’ attempt to modify the Board’s

approach to deferred adjudications. However, as noted, this legislative

history is silent with respect to the issue before us. See Chevron, U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 862 (1984) (declining to find

that legislative history illuminates congressional intent where that history is

either silent or ambiguous on the issue); see also Exxon Mobil Corp.

v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“Extrinsic materials

have a role in statutory interpretation only to the extent they shed a reliable

light on the enacting Legislature’s understanding of otherwise ambiguous

terms.”). For this reason, the legislative history does not resolve whether

section 101(a)(48)(A) contains a finality requirement.

Based on the plain language of the Act and the clear weight of authority

in the circuit courts, I would conclude that “the first definition of ‘conviction’

in § [101](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.” Planes, 652 F.3d at 996. The majority errs by

invoking congressional silence to convert the otherwise plain language at

issue here into statutory ambiguity, thereby giving us license to resolve the

ambiguity in the manner that we think is best. “Regardless of our view on

the wisdom or efficacy of Congress’s policy choices, we are not free to read

in additional elements where the legislature has declined to include them.”

Id. (citing Jones v. Bock, 549 U.S. 199, 216–17 (2007)).

I therefore respectfully dissent from the majority’s decision to remand

this case for further proceedings. I would deny the respondent’s motion to

remand because the new evidence does not indicate that his conviction has

been overturned or vacated, and he remains ineligible for relief under former

section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See Matter of Coelho,

20 I&N Dec. 464 (BIA 1992).

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