Planes v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ANGELO SAMONTE PLANES, 

Petitioner, No. 07-70730

v.

 Agency No.

A037-329-028

ERIC H. HOLDER Jr., Attorney

General, ORDER

Respondent.



Filed June 5, 2012

Before: Harry Pregerson, Consuelo M. Callahan, and

Sandra S. Ikuta, Circuit Judges.

Order;

Concurrence by Judge Ikuta;

Dissent by Judge O’Scannlain

ORDER

The panel has voted to deny Petitioner’s Petition for Panel

Rehearing En Banc. Judges Callahan and Ikuta have voted to

deny the en banc petition. Judge Pregerson has voted to grant

the en banc petition.

A judge of this court called for this case to be reheard en

banc. A vote was taken, and a majority of the active judges

of the court did not vote for a rehearing en banc. Fed. R. App.

35(f).

The petition for rehearing en banc is therefore DENIED.

6275

6276 PLANES v. HOLDER

IKUTA, Circuit Judge, with whom O’SCANNLAIN,

CALLAHAN, and BEA, Circuit Judges, join, concurring in

the denial of rehearing en banc:

The dissent from the denial of rehearing en banc neglects

a salient point: Every circuit that has given a reasoned opinion

on the interpretation of “conviction” in 8 U.S.C.

§ 1101(a)(48)(A) has reached the same conclusion as the

panel does here, namely, that “[t]he term ‘conviction’ means,

with respect to an alien, a formal judgment of guilt of the

alien entered by a court,” regardless whether appeals have

been exhausted or waived. 8 U.S.C. § 1101(a)(48)(A); see

Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir. 2011);

Puello v. Bureau of Citizenship & Immigration Servs., 511

F.3d 324, 331-32 (2d Cir. 2007); Montenegro v. Ashcroft, 355

F.3d 1035, 1037 (7th Cir. 2004) (per curiam); Moosa v. INS,

171 F.3d 994, 1009 (5th Cir. 1999); see also Griffiths v. INS,

243 F.3d 45, 50-51 (1st Cir. 2001).

Most recently, the Tenth Circuit explained in no uncertain

terms that Congress defined “conviction” in § 1101(a)(48)(A)

“specifically to supplant a prior BIA interpretation that had

required deportation to wait until direct appellate review

(though never collateral review) of the conviction was

exhausted or waived.” Waugh, 642 F.3d at 1284 (quoting

United States v. Adame-Orozco, 607 F.3d 647, 653 (10th

Cir.), cert. denied, 131 S. Ct. 368 (2010)) (internal quotation

marks omitted). “From this,” the Tenth Circuit concluded, “it

follows that an alien is lawfully deportable as soon as a for-

mal judgment of guilt is entered by a trial court.” Id. (quoting

Adame-Orozco, 607 F.3d at 653) (internal quotation marks

omitted); see also United States v. Saenz-Gomez, 472 F.3d

791, 794 (10th Cir. 2007) (rejecting the argument that Con-

gress intended the definition of “conviction” in

§ 1101(a)(48)(A) to require exhaustion or waiver of appeals,

and instead relying on the literal language to hold that the fil-

ing of a written judgment against the petitioner constituted a

“conviction” for purposes of the statute).

PLANES v. HOLDER 6277

Other circuits have reached similar conclusions. In Puello,

the Second Circuit stated: “IIRIRA did, however, eliminate

the requirement that all direct appeals be exhausted or waived

before a conviction is considered final under the statute.” 511

F.3d at 332. This conclusion is directly on point and identical

to the panel’s conclusion here. Two subsequent unpublished

opinions have reiterated this conclusion,1 and no Second Cir-

cuit opinion has disagreed.

In Montenegro, the Seventh Circuit stated:

Before the enactment of IIRIRA, the Supreme Court

required that a deportation proceeding be based on a

conviction that had sufficient ‘finality,’ which we

interpreted to mean that the alien no longer had any

direct appeal pending. IIRIRA, however, treats an

alien as ‘convicted’ once a court enters a formal

judgment of guilt. IIRIRA eliminated the finality

requirement for a conviction . . . . Under IIRIRA,

therefore, Montenegro’s conviction in April 1996 of

an aggravated felony rendered him removable.

Montenegro, 355 F.3d at 1037-38 (emphasis added) (internal

citations omitted).

1

See Ramirez v. Holder, 447 F. App’x 249, 251 n.1 (2d Cir. 2011) (sum-

mary order) (“This court has suggested that the definition of ‘conviction,’

added to the immigration laws in 1996, ‘eliminate[d] the requirement that

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

final under the statute.’ Because Ramirez’s petition is without merit even

under the more favorable definition of conviction applied by the BIA, we

need not here decide whether Puello’s construction should be followed.”

(alteration in original) (internal citation omitted) (quoting Puello, 511 F.3d

at 332)); Alejo v. Mukasey, 292 F. App’x 128, 128 (2d Cir. 2008) (sum-

mary order) (“As we have explained, in 1996, Congress ‘eliminate[d] the

requirement that all direct appeals be exhausted or waived before a con-

viction is considered final.’ ” (alteration in original) (quoting Puello, 511

F.3d at 332)).

6278 PLANES v. HOLDER

In Moosa, the Fifth Circuit considered whether Congress

intended to retain the “finality requirement” that the BIA had

“superimposed” on the definition of “conviction,” Moosa, 171

F.3d at 1000, and concluded that the finality requirement had

been eliminated by the new statutory language of IIRIRA. Id.

at 1001-02 (quoting the current version of § 1101(a)(48)(A)

and concluding that it eliminated the finality requirement).

Unable to cite a single circuit court that has adopted their

proposed interpretation, the dissent instead argues that we

should ignore the interpretation and reasoning of our sister

circuits because the statutory construction issue in those cases

arose in different contexts. Dissental at 6284-85 n.4. Each of

our sister circuits, however, interpreted the same statutory lan-

guage as the panel interpreted here. As the Supreme Court

unanimously held, the same words in the same statute have

the same meaning, regardless of the context. See Leocal v.

Ashcroft, 543 U.S. 1, 12 n.8 (2004).

Nor does the dissent offer any persuasive justification for

rejecting the reasoned decisions of our sister circuits. The dis-

sent relies primarily on a BIA decision issued before Con-

gress enacted the current version of § 1101(a)(48)(A), in

which the BIA stated that a conviction is not final “until direct

appellate review of the conviction has been exhausted or

waived.” See Matter of Ozkok, 19 I. & N. Dec. 546, 552 n.7

(B.I.A. 1988). According to the dissent, the panel should have

followed Ozkok, because the lack of any express statement in

the legislative history that Congress rejected this finality

requirement means that the panel should read it into the

amended statute. Dissental at 6285-86. The dissent’s reliance

on Congressional silence to construe a statute is clearly

wrong: when the plain language of the statute is clear, it is

improper to look for hidden meanings within the legislative

history, much less within the silences of the legislative his-

tory. See Cmty. for Creative Non-Violence v. Reid, 490 U.S.

730, 749 (1989) (rejecting the argument that Congress’s fail-

ure to expressly reject judicial interpretations of an earlier

PLANES v. HOLDER 6279

version of a statute meant that Congress intended to incorpo-

rate that interpretation in the amended statute, and noting that

“[o]rdinarily, Congress’ silence is just that—silence” (quoting

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987))

(internal quotation marks omitted)).

Moreover, to the extent a court might consider what Con-

gress chose not to say, it would have to recognize that when

Congress “adopted almost verbatim the definition set out by

the BIA in Matter of Ozkok,” dissental at 6285, Congress

chose not to include the very statement in Ozkok on which the

dissent relies. Similarly, Congress also decided not to include

Ozkok’s conclusion that a deferred adjudication counts as a

“conviction” only if it is not subject to appeal or other pro-

ceedings. See Ozkok, 19 I. & N. Dec. at 552. In light of these

silences, it is most reasonable to infer that Congress intention-

ally omitted any finality requirement from its definition of

“conviction.” And even if it was Congress’s intent to import

the Ozkok finality requirement into the statute, there is a

straightforward remedy: Congress may revise the plain lan-

guage of the statute.

Finally, the dissent is mistaken in asserting that the panel

erred by failing to remand to the BIA to obtain its interpreta-

tion of § 1101(a)(48)(A) first. It is well established that the

court, not the BIA, is responsible for statutory interpretation.

See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final

authority on issues of statutory construction and must reject

administrative constructions which are contrary to clear con-

gressional intent.”); Federiso v. Holder, 605 F.3d 695, 697

(9th Cir. 2010) (“Only if we determine that a statute is ambig-

uous do we defer to the [BIA’s] interpretation. We may not

accept an interpretation clearly contrary to the plain meaning

of a statute’s text.”) (internal citations omitted). Because the

6280 PLANES v. HOLDER

plain language of § 1101(a)(48)(A) is unambiguous, the panel

was correct to address this issue in the first instance.2

In sum, the panel decided the issue before it in a manner

consistent with the plain language of the statute and with all

other circuits that have ruled on the issue. The panel’s

approach and conclusion were correct, as was the decision of

the court not to rehear the case en banc.

REINHARDT, Circuit Judge, with whom Chief Judge

KOZINSKI and Judges PREGERSON, THOMAS,

WARDLAW, W. FLETCHER, and PAEZ join, dissenting

from the denial of rehearing en banc:

The three-judge panel in this case decided a question of

exceptional importance: whether immigrants in our country,

lawful and unlawful, can be deported immediately after a trial

court enters a judgment of guilt against them in a criminal

case, before they have had the opportunity to obtain appellate

review of their convictions. Reasoning, inexplicably, that the

Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), in enacting the definition of conviction in 8

U.S.C. § 1101(a)(48)(A), eliminated the finality rule which

barred deportations pending appellate review, the panel held

2

The dissent’s claim that the panel decided this case on a basis not

raised by the petitioner is baseless. Planes stated the issue before the court

in his opening brief: whether “the BIA erred in determining that petition-

er’s federal 18 U.S.C. § 1029 offense qualified as a ‘conviction’ for immi-

gration purposes because he had not yet received any sentence on his

crime, thus it did not meet the requirements for a conviction under INA

§ 101(a)(48)(A).” In direct response to the legal issue before us, we con-

cluded that the BIA did not err in determining that Planes’s 2004 convic-

tion was a “conviction” for immigration purposes even though, as the BIA

noted, further proceedings were pending. We agreed with the BIA’s con-

clusion that these proceedings (which also included a further right to

appeal) did not relate to whether Planes stood convicted of the crime. In

re Planes, 2007 WL 416855 (B.I.A. Jan. 24, 2007) (unpublished).

PLANES v. HOLDER 6281

that such an unreasonable practice is now lawful. It did so

despite the fact that the Board of Immigration Appeals

(“BIA”) did not mention or consider the issue in its opinion,

that the parties did not brief it either before the BIA or before

this court, and, most important, that Congress clearly

expressed its intent to preserve the longstanding rule that a

conviction is not final for immigration purposes until the

immigrant has exhausted or waived his direct appeal as of

right.

The consequence is that countless immigrants, including

lawful permanent residents with young U.S. citizen children

and other strong ties to the United States, are subject to imme-

diate deportation should a trial court ever enter a judgment of

guilt against them. Such a rule deprives immigrants who are

deported prior to appellate review of their due process rights

when pursuing an appeal, including consulting with their

counsel, should they even be able to obtain appellate counsel.

In addition, even if their convictions are subsequently over-

turned, they remain ineligible to reenter the country without

the permission of the Attorney General, and the only recourse

available to them is most likely a request to the BIA for dis-

cretionary reopening of their immigration case, the denial of

which the courts are powerless to review.1 As to immigrants

not deported before their direct appeals have been completed,

1

Even if the BIA exercises its discretion and reverses a deportation

order, an already deported immigrant may have trouble returning to the

United States. Recently, the U.S. Department of Justice admitted that,

despite misleading representations made by the government to the

Supreme Court in Nken v. Holder, there was not, until recently, a written

policy to facilitate the return of aliens who had been removed pending

judicial review of BIA orders. See Letter of April 24, 2012, from Deputy

Solicitor General, Nken v. Holder, 556 U.S. 418 (2009) (No. 08-681),

available at http://online.wsj.com/public/resources/documents/return.PDF.

The government noted that plaintiffs in a Freedom of Information Act case

in district court had submitted declarations showing that they had “en-

countered significant impediments in returning” and that these declara-

tions “have raised questions about the promptness and consistency with

which return has actually been accomplished.” Id.

6282 PLANES v. HOLDER

the BIA, as a result of the decision we decline to review, may

still enter a final order of deportation against them, regardless

of the pendency of their appeal. Upon entry of such an order,

those immigrants would be stripped of whatever legal status

they previously enjoyed, be unable to obtain lawful employ-

ment, and be left with only a request to the BIA for discre-

tionary reopening should their convictions be overturned after

the expiration of the 90-day period in which to file a timely

motion to reopen. Should the BIA refuse to exercise its unre-

viewable discretion, they will face an order of deportation that

can be enforced whenever the Department of Homeland

Security (“DHS”) decides to deport them.2

This is not what the law requires, and not what Congress

intended. The panel arrived at its holding only by disregarding

Congress’ intent and asserting that the language of the statute

is clear, all while ignoring (in fact, not even mentioning) the

fact that this same language had long been interpreted to

include the finality rule. The decision is all the more egre-

gious because the panel expressly reached beyond its review

power to adopt a rule providing for such unconscionable treat-

ment to immigrants in our country, including longtime lawful

permanent residents with U.S. citizen children. Because this

is an issue of exceptional importance that was erroneously

reached and wrongly decided, I strongly regret our failure to

rehear the case en banc and must respectfully dissent.

2

Even a reversal of an appeal may not be sufficient to persuade the BIA

to reopen a case or the DHS to cancel a deportation order. See, e.g., Matter

of Steven, 2011 WL 1792599 (BIA 2011) (denying motion to reopen after

conviction had been vacated because the agency could not determine from

the record the reason for vacating the conviction, although the record con-

tained the motion filed by the criminal attorney explaining the reasons

seeking to do so); Matter of Estevez, 2011 WL 3889669 (BIA 2011)

(denying motion to reopen because, although conviction was vacated, the

reason could not be discerned from the record); Matter Gonzalez-Ramirez,

2010 WL 3355098 (BIA 2010) (same); Matter of Spencer, 2009 WL

773245 (BIA 2009) (same).

PLANES v. HOLDER 6283

I. The BIA Did Not Decide (Or Even Mention), and the

Parties Did Not Brief, the Elimination of the Finality

Rule

The three-judge panel overstepped its authority and decided

the petition for review on a ground not relied upon by the

BIA. Nowhere, not even in passing, is the finality rule ever

mentioned by the agency. Nor was the issue briefed before the

BIA, or the panel, by either party.3 In ignoring these facts, the

panel also ignored the clear mandate from the Supreme Court

and our case law that we “must judge the propriety of [agency

action] solely by the grounds invoked by the agency.” SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947) (emphasis added);

see also Hernandez-Cruz v. Holder, 651 F.3d 1094, 1109-10

(9th Cir. 2011) (noting that we cannot “supply a reasoned

basis for the agency’s action that the agency itself has not

given”) (internal quotation marks and citations omitted);

Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)

(“[W]e must decide whether to grant or deny the petition for

review based on the Board’s reasoning rather than our own

independent analysis of the record.”) (emphasis added); Andia

v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)

(“In reviewing the decision of the BIA, we consider only the

grounds relied upon by that agency.”) (emphasis added);

Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (“[T]his

court cannot affirm the BIA on a ground upon which it did not

rely.”); Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.

1988) (“[O]ur review is confined to the BIA’s decision and

the bases upon which the BIA relied.”).

3

The issue before the BIA was different: whether following an affir-

mance of the conviction on direct appeal and an Ameline remand for

resentencing, the direct appeal of the conviction had been exhausted and

only a collateral proceeding remained, or whether notwithstanding the

affirmance of the conviction a direct appeal still remained pending a fur-

ther review of the sentence. Implicit in both parties’ positions was the

assumption that the finality rule remained unchanged.

6284 PLANES v. HOLDER

Dispositively, the only time since the enactment of the

IIRIRA that the BIA actually considered the question of the

finality rule, it did so en banc in a case two years after it

decided the appeal in the petition now before us. In that case,

Matter of Abreu, the BIA ultimately determined that it was

not necessary to rule on the issue. 24 I. & N. Dec. 795, 798

(BIA 2009), vacated by Abreu v. Holder, 378 F. App’x 59 (2d

Cir. 2010). Nevertheless, seven out of fourteen members of

the en banc BIA court would have explicitly held that in

enacting IIRIRA Congress did not eliminate the finality rule

for direct appeals as of right, id. at 802-03, 811-21, five other

members recognized the argument as a “forceful” one, id. at

798, and only two members would have held that the finality

rule was eliminated for such appeals, id. at 803-11. Since

then, the BIA has continued to apply the finality rule to direct

appeals as of right in unpublished decisions, recognizing that

a “conviction [becomes] final for immigration purposes when

the [alien] failed to appeal his conviction, allowed the appeal

period to lapse, waived his right to a direct appeal, or

exhausted the direct appeal of his conviction.” Matter of

McLarty, 2011 WL 2607064 (BIA 2011); see also Matter of

Evans, 2012 WL 177335 (BIA 2012); Matter of Guevara-

Medina, 2011 WL 6962795 (BIA 2011).

II. IIRIRA Did Not Eliminate the Finality Rule

Not only did the panel overstep its authority and rule on a

ground not relied upon by the BIA; it is also wrong on the merits.4

4

Although the panel purports to “join the well-reasoned opinions of the

Second, Fifth, Seventh, and Tenth Circuits,” each of the cases cited by the

panel is distinguishable, and only the one decided by the Tenth Circuit

purports to hold that a petitioner is not entitled to a direct appeal as of

right prior to being deported. The statement regarding the finality rule in

Puello v. Bureau of Citizenship & Immigration Services, 511 F.3d 324 (2d

Cir. 2007), was dicta, as later recognized by the Second Circuit itself. See,

e.g., Ramirez v. Holder, 447 F. App’x 249 (2d Cir. 2011). In fact, in Abreu

v. Holder, 378 F. App’x 59 (2d Cir. 2010), decided two years after Puello,

the Second Circuit remanded the case to the BIA for determination of this

PLANES v. HOLDER 6285

Up until this decision by the panel, the rule had long been that

a conviction is not final for immigration purposes until the

defendant has exhausted or waived his direct appeal as of

right. See Matter of Ozkok, 19 I. & N. Dec. 546, 551-52 n.7

(BIA 1988). In Matter of Ozkok, the BIA held that a convic-

tion existed for immigration purposes “if the court has adjudi-

cated [the immigrant] guilty or has entered a formal judgment

of guilt,” stating that “[i]t 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.” Id. at 551 & 552 n.7. Congress,

in enacting the definition of conviction in 8 U.S.C.

§ 1101(a)(48)(A), adopted almost verbatim the definition set

out by the BIA in Matter of Ozkok, defining a conviction as

“a formal judgment of guilt of the alien entered by a court.”

Nothing in IIRIRA or its legislative history suggests that Con-

gress intended the phrase “formal judgment of guilt” to be

interpreted any differently from how it always had been inter-

preted prior to the enactment of the statute. Certainly, nothing

suggests that Congress intended to eliminate the longstanding

finality rule that provided for exhaustion of direct appeals as

of right before a conviction became final for immigration pur-

poses. In fact, by adopting almost verbatim the definition

very question in the first instance. The Fifth Circuit in Moosa v. INS, 171

F.3d 994 (5th Cir. 1999), held only that the finality rule had been elimi-

nated as to deferred adjudications, which, as explained infra at pages

6286-87, all agree was the intent of Congress. Moosa unquestionably did

not deal with direct appeals as of right. In the Seventh Circuit, Montenegro

v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004) (per curiam), involved a peti-

tion for certiorari to the Supreme Court and a collateral attack on a convic-

tion, neither of which is a direct appeal as of right and neither of which

affected the finality of a conviction for immigration purposes even under

pre-IIRIRA case law. Finally, the Tenth Circuit case, United States v.

Saenz–Gomez, 472 F.3d 791 (10th Cir. 2007), was decided in the context

of a subsequent criminal reentry proceeding, not in an immigration pro-

ceeding deciding whether an alien can be deported immediately after the

trial court enters a judgment against him, regardless of whether a direct

appeal is pending.

6286 PLANES v. HOLDER

from Matter of Ozkok, Congress expressed its intent to pre-

serve the longstanding requirement of finality for direct

appeals as of right. “When the words of the Court are used in

a later statute governing the same subject matter, it is respect-

ful 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.” Williams v. Taylor, 529 U.S. 420, 434

(2000); see also Alaska v. Native Village of Venetie Tribal

Gov’t, 522 U.S. 520, 530-31 (1998) (finding that Congress

incorporated requirements for a finding of a “dependent

Indian community” set out in previous case law where the text

of the subsequent statute “is taken virtually verbatim” from

the precedent and the Historical and Revision Notes to the

statute indicated an intent to codify the precedent).

In contrast, in IIRIRA, Congress did eliminate the finality

requirement for convictions as to which there is no entitle-

ment to an immediate direct appeal. Such convictions are

known as deferred adjudications. The BIA in Matter of Ozkok

held that, for immigration purposes, a deferred adjudication

would be considered a conviction if three elements were met,

the third of which consisted of a finality requirement.5 Con-

gress adopted, again almost verbatim, that definition from

Matter of Ozkok, except that it omitted the third element,

thereby eliminating the finality requirement as to deferred

adjudications, and thus provided that a conviction exists for

5

Matter of Ozkok defined a conviction in the deferred adjudication con-

text as follows: “Where adjudication of guilt has been withheld,” if

(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 . . . ; 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.

19 I. & N. Dec. at 551-52.

PLANES v. HOLDER 6287

immigration purposes once there is a finding of guilt and the

imposition of punishment in such proceedings. See 8 U.S.C.

§ 1101(a)(48)(A). The elimination of the finality provision for

deferred adjudications, along with the failure to make any

change in the language regarding direct appeals as of right,

further demonstrates Congress’ intent to retain the finality

rule for the latter category of appeals.

The panel completely disregarded this history. It relied on

the supposed “plain language of the statute,” without

acknowledging that this same language had long been inter-

preted for purposes of immigration law to include the finality

rule. It ignored the clear intent of Congress in taking the lan-

guage from Matter of Ozkok and codifying it in the statutory

definition of conviction with respect to cases including direct

appeals as of right—and it ignored the fact that Congress, in

that same statute, omitted the finality requirement for a differ-

ent category of cases, deferred adjudications. The panel also

ignored the fact that, when the BIA, the agency charged with

interpreting the statute, considered the matter en banc, it held

that it need not reach the issue, although seven out of its four-

teen members would have held that Congress intended to pre-

serve the finality rule, Matter of Abreu, 24 I. & N. Dec. at

802-03, 811-21, five other members recognized this argument

as a “forceful” one, id. at 798, and only two members out of

fourteen would have held, as the three-judge panel did here,

that Congress eliminated the finality rule for direct appeals as

of right, id. at 803-11. I believe that the majority of the BIA

had it right, and that it would hold, if allowed to decide the

case here, that the finality rule still applies to direct appeals

as of right.

At the very least, this court, like the Second Circuit, should

have returned the case to the BIA so that it could decide in a

published opinion the important issue that the Second Circuit

has already asked it to decide (see Abreu v. Holder, 378 F.

App’x 59): the continued applicability of the finality rule to

direct appeals as of right, which the BIA has overwhelmingly

6288 PLANES v. HOLDER

recognized in unpublished opinions in a manner directly con-

trary to what the three-judge panel holds here. Rather than

bypassing the BIA and deciding the question ourselves, if we

think that the issue must now be decided, we should have

afforded the BIA the opportunity to do so in a formal pub-

lished opinion of the Board.

***

In sum, the panel exceeded its authority in deciding the

petition for review on the ground that IIRIRA eliminated the

finality rule for direct appeals as of right. That is not what the

BIA decided; instead, the BIA simply characterized the pend-

ing proceedings in Planes’ case as “collateral proceedings”

affecting only his sentence. The panel also got the case wrong

on the merits. By adopting almost verbatim the definition of

conviction from Matter of Ozkok, Congress expressed its

intent to preserve the longstanding finality rule. It is regretta-

ble that our court has refused to rehear this case en banc to

correct the overreaching and misguided holding by the three-

judge panel. One can only hope that others will not make that

same error.

I dissent.