Interim Decision #3232

Interim Decision #3232

MATTER OF POLANCO

In Deportation Proceedings

A-34403819

Decided by Board October 21, 1994

(1) An alien who has waived or exhausted the right to a direct appeal of a conviction is

subject to deportation, and the potential for discretionary review on direct appeal will

not prevent the conviction from being considered final for immigration purposes.

(2) Where an alien failed to file a timely appeal from his conviction and did not show

that his request for a nunc pro tune appeal pursuant to Rule 2:4-4(a) of the New Jersey

Rules of Court had been granted, his conviction is final for immigration purposes.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)I—Convicted of

aeravated felony

Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(i)]—Convicted of

controlled substance violation

ON BEHALF OF SERVICE:

Jane H. Minichiello

General Attorney

ON BEHALF OF RESPONDENT:

Stephen A. Traylor, Esquire

20 Nassau Street, Suite 204

Princeton, New Jersey 08540-4509

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,

Alternate Board Member

The Immigration and Naturalization Service has appealed from a

decision of the immigration judge dated January 13, 1993, terminating

the proceedings in this case. The appeal will be sustained and the

record will be remanded to the immigration judge for further

proceedings.

The respondent is a native and citizen of the Dominican Republic

who was admitted to the United. States as a lawful permanent resident

on June 10, 1977. An Order to Show Cause and Notice of Hearing

(Form 1-221) alleges that he was convicted on October 3, 1991, in the

New Jersey Superior Court for Passaic County, of possession of a

controlled dangerous substance (cocaine) with intent to distribute

within 1,000 feet of school property.

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Interim Decision #3232

At his hearing, the respondent denied the charge of deportability on

the ground that he had filed a notice of appeal from his conviction and

that the conviction was therefore not fmal. The attorney for the

Service asserted that since the appeal had not been filed until July

1992, it was untimely. She conceded that the Appellate Division of the

New Jersey Superior Court had "accepted" the respondent's late

appeal, although no documentation of such acceptance had been

offered or admitted into evidence. However, she argued that the

conviction was final, citing Matter of Adetiba, 20 I&N Dec. 506 (BIA

1992), for the propositions that a conviction is final for immigration

purposes when the right to direct appellate review has been exhausted,

and that the finality of a conviction is not affected by the filing of a

post-conviction motion. The immigration judge determined that the

respondent's conviction was on direct appeal and terminated the

proceedings.

On appeal, the Service contends that the respondent's conviction is

final for immigration purposes because it was not timely filed. The

Government relies on the definition of the term "conviction" set forth

in 8 C.F.R. § 242.2(b) (1994), which provides:

The term conviction as used in section 242(i) of the Act means that—

(1) There Ins been a conviction by a court of competent jurisdiction; and

(2) All direct appeal rights have been exhausted or waived; or

(3) The appeal period has lapsed.

While acknowledging that the New Jersey Rules of Court provide a

procedure for allowing a nunc pro tune appeal, the Service asserts that

such an appeal is discretionary and does not affect the finality of the

respondent's conviction. We find that the respondent's conviction is

final and will sustain the Service's appeal.

The question of when a conviction becomes final for immigration

purposes has long been problematical. See Matter of Ozkok, 19 I&N

Dec. 546, 548-49 (BIA 1988). The United States Courts of Appeals

have generally agreed that a conviction is not final until direct

appellate review has been either exhausted or waived, but one subject

to collateral attack or other modification is final. White v. INS, 17 F.3d

475 (1st Cir_ 1994); Grageda v. INS, 12 F.3d 919 (9th Cir. 1993);

Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990); Okabe v.

INS, 671 F.2d 863 (5th Cir. 1982); Morales-Alvarado v. INS, 655 F.2d

172 (9th Cir. 1981); Marino v. INS, United States Dept. of Justice, 537

F.2d 686 (2d Cir. 1976); cf: Aguilera-Enriquez v. INS, 516 F.2d 565

(6th Cir. 197 5) (rejecting the "direct" versus "collateral" distinction in

favor of finality after entry of guilty plea and completion of sentencing), cert. denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th

Cir. 1971) (concluding that a motion in arrest of judgment was in the

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category of a direct appeal and its pendency precluded a finding of

finality).

In Morales-Alvarado v. INS, supra, the Court of Appeals for the

Ninth Circuit addressed the novel question of whether immigration

authorities can consider a conviction final pending a discretionary

appeal, commonly referred to procedurally as a "direct appeal," to the

highest court of a three-tiered state system. Noting that prior caselaw

had only precluded consideration of an alien's conviction while his

appeal of right was pending, the court stated that a conviction is final

once the alien has exhausted the direct appeals to which he is entitled.

The court next determined that discretionary review on direct appeal

is more analogous to a collateral attack than to a direct appeal of right

for purposes of determining finality in immigration proceedings. Thus,

it concluded that an alien cannot escape deportation while awaiting

the disposition of a petition for discretionary review of his conviction

in a state court, or, likewise, of a petition for a writ of certiorari to the

United States Supreme Court.

The dissenting judge in Morales-Alvarado preferred to draw the line

of finality between direct appeals and collateral attacks, noting that the

most important difference between the two categories was that direct

appeals, whether of right or discretionary, must be pursued within a

clearly limited period of time. He observed that collateral attacks, on

the other hand, are often subject to no such restriction. For this reason,

the judge concluded that it would be "unreasonable to permit the

availability of a collateral attack to render a conviction non-final."

Morales-Alvarado v. INS, supra, at 175 (J. Canby, dissenting); see also

Aguilera-Enriquez v. INS, supra, at 571 (noting that weighing the

probability of success of every post - conviction motion would hopelessly complicate the process of deportation, "which Congress intended to

be simple and swift").

We concur with the reasoning of the court in Morales-Alvarado v.

INS, supra. We conclude, as did the majority in that case, that an alien

who has either waived or exhausted his right to a direct appeal of his

conviction is subject to deportation, and that the potential for

discretionary review on direct appeal will not prevent the conviction

from being considered final for immigration purposes. We further find

merit in the dissenting judge's observation that it would be unreasonable to delay the proceedings on the basis of the availability of postconviction review that is not limited by any time constraints. In light

of this position, we now examine the New Jersey nunc pro tunc appeal

procedure.

According to Rule 2:4-1(a) of the New Jersey Rules of Court, a

defendant has the right to take a direct appeal within 45 days of the

entry of a final judgment. See Simmons v. Beyer, 689 F. Supp. 432, 440

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(D.N.J. 1988). If he fails to file a timely appeal within that period, the

Appellate Division of the Superior Court may extend the time for

appeal under the nunc pro tune appeal procedure provided in Rule

2:4-4(a).' Although the rule permits an extension of the filing period

for a maximum of 30 days, and a showing of good cause and the

absence of prejudice must normally be shown, the Supreme Court of

New Jersey has ordered the Appellate Division to relax these

requirements in the case of indigent defendants. State v. Altman, 438

A.2d 576, 577 (N.J. Super. Ct. App. Div. 1981).2 Such a defendant

must nevertheless demonstrate that he made a timely request of his

counsel to file an appeal on his behalf before the Appellate Division

will grant leave to file a late appeal. Id. However, if that requirement is

met, the court may permit the defendant to take a mine pro tune

appeal "irrespective of the lateness of the hour." /d. 3

Although instructed to relax the requirements of Rule 2:4-4(a) for

indigent defendants, the Appellate Division has observed that "application[s] for leave to appeal nunc pro tune" in such cases are not

routinely granted. State v. Edwards, 446 A.2d 1217, 1220 (NJ. Super.

Ct. App. Div. 1982). We note in this regard that Simmons v. Beyer,

supra, illustrates the denial of a defendant's motion for nunc pro tune

appeal by the Appellate Division, despite a trial judge's finding that

the required timely request for appeal to counsel had been expressed.

It is thus evident that a motion for leave to file a notice of appeal nunc

pro tune is discretionary in nature.

Following the rationale of Morales-Alvarado v. INS, supra, we find

that an alien who failed to file a timely appeal from his conviction

under New Jersey law has a final conviction for immigration purposes,

despite the potential for seeking a discretionary nunc pro tune appeal.

We consider it significant that the New Jersey Rules of Court contain

no time constraints whatsoever to limit the period during which a

defendant can request permission to take a nunc pro tune appeal. Were

Rule 2:4-4(a) provides as follows:

The appellate court, upon a showing of good cause and the absence of prejudice, may

extend the time fixed by R. 2:4 1(a) (final judgment) , for a period not exceeding

30 days, but only if the notice of appeal ... was in fact served and filed within the

time as extended.

2 In State v. Altman, supra, the court quoted a "Notice to Appellate Bar" from the

Supreme Court of New Jersey, published at 100 N.J.LJ. 1208 (1977), which stated:

The Supreme Court has directed the Appellate Division to relax Rule 2:4-4(a) in favor

of allowing an out-of-time appeal nunc pro tune on behalf of an indigent criminal

defendant in any case where it satisfactorily appears that the defendant, personally,

within Lime, requested his trial counsel or the Public Defender's Office to file an

appeal on his behalf.

3 The defendant in State K. Altman, supra, moved to file a notice of appeal nunc pro

tunc almost 2 1/2 years after his conviction, and the court granted his motion.

-

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we to hold that a conviction under New Jersey law is not final simply

because an alien retains the right to apply for a late appeal, his

deportation proceedings could be postponed indefinitely by the mere

existence of the nunc pro tune appeal procedure. We do not believe

that Congress intended for the deportation of a convicted alien to be so

delayed. See Aguilera-Enriquez v. INS, supra; Will v. INS, supra.

In the case before us, the record contains a notice of appeal relating

to the respondent, which is signed by the Public Defender and

addressed to the Appellate Division of the Superior Court of New

Jersey.4 Although the parties to the appeal before us state that the

respondent's nunc pro tunc appeal was "accepted" by the court, the

notice of appeal is neither dated nor stamped by the Appellate

Division. In any event, the significance of any such "acceptance" is

unclear. There is no evidence, or even an allegation, that the court

entered an order granting the respondent permission to file a late

appeal or that such an appeal is presently under consideration. Under

these circumstances, we find that the respondent has failed to show

that he has been granted leave to take a nunc pro tune appeal by the

Appellate Division. Consequently, we conclude that the respondent's

conviction is final for purposes of supporting a deportation order. The

appeal will accordingly be sustained and the record will be remanded

to the immigration judge for further proceedings.

Inasmuch as the respondent has not shown that he has been granted

permission to take a late appeal, we need not determine what effect

proof of a pending nunc pro tunc appeal might have on the finality of

his conviction.

The appeal of the Immigration and Naturalization

ORDER:

Service is sustained and the record is remanded to the immigration

judge.

4 We note that nothing in the notice of appeal or the other documents submitted by the

respondent indicates that he had asked counsel to submit an appeal on his behalf within

the time for filing an appeal. We therefore question whether the respondent even met the

requirements for seeking a late appeal. See State v. Altman, supra.

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