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Matter of Roberto CARDENAS ABREU, Respondent

File A046 046 300 - Marcy, New York

Decided May 4, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A pending late-reinstated appeal of a criminal conviction, filed pursuant to section 460.30

of the New York Criminal Procedure Law, does not undermine the finality of the conviction

for purposes of the immigration laws.

FOR RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Laura A. Michalec, Assistant

Chief Counsel

BEFORE: Board En Banc: OSUNA, Chairman; HOLMES, FILPPU, MALPHRUS, and

MULLANE, Board Members. Concurring Opinions: GRANT, Board Member; PAULEY,

Board Member, joined by COLE, Board Member. Dissenting Opinion: GREER, Board

Member, joined by NEAL, Vice Chairman; MILLER, HESS, ADKINS-BLANCH, and

WENDTLAND, Board Members.

MALPHRUS, Board Member:

In a decision dated October 30, 2008, an Immigration Judge denied the

respondent’s motion to reopen his proceedings, in which he argued that his

criminal conviction was not final because he had been granted permission to

file a late appeal. The respondent has appealed from that decision. The appeal

will be dismissed.

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 June 26, 1996.

On October 11, 2007, the respondent was convicted of first degree burglary in

violation of section 140.30 of the New York Penal Law.1 The record reflects

that he failed to file an appeal within the 30-day deadline provided in

1

These undisputed facts are drawn from State court filings presented below. See generally

Matter of A-S-B-, 24 I&N Dec. 493, 498 (BIA 2008).

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section 460.10(1)(a) of the New York Criminal Procedure Law. The

respondent was placed in removal proceedings and was charged under section

237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii) (2006), as an alien convicted of an aggravated felony.

The Immigration Judge ordered him removed in a decision dated July 22,

2008. The respondent did not appeal that decision.

In a motion dated August 15, 2008, the respondent requested that the State

criminal court grant him permission to file a late appeal pursuant to section

460.30 of the New York Criminal Procedure Law. Over opposition from the

State, the court granted the respondent’s motion on September 26, 2008,

reinstating the time for filing an appeal. The respondent filed a motion to

reopen his removal proceedings on October 14, 2008, claiming that his

criminal conviction was not final because he had been granted permission to

file a late appeal.2 The Department of Homeland Security (“DHS”) opposed

the motion to reopen, arguing that the respondent’s conviction remained final

and valid for immigration purposes. The Immigration Judge concluded that

the respondent’s conviction remained a valid predicate for the charge of

removability and denied the respondent’s motion to reopen.

II. ANALYSIS

In 1996, Congress enacted section 322(a)(1) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

104-208, 110 Stat. 3009-546, 3009-628 (“IIRIRA”), which set forth a

definition of the term “conviction.” This definition is in section 101(a)(48)(A)

of the Act, 8 U.S.C. § 1101(a)(48)(A) (2006), which 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—

(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.

Initially, we must “determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the case.”

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Issues regarding whether

the language is plain and unambiguous are “determined by reference to the

2

The granting of this motion to reopen would require that these removal proceedings be

terminated. Also, the respondent would not be subject to the custody of the Department of

Homeland Security on this basis.

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language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.” Id. at 341.

The DHS argues that under the plain language of section 101(a)(48)(A) of

the Act, the respondent has a conviction because the State criminal court

entered “a formal judgment of guilt” on October 11, 2007. The DHS therefore

contends that even if the respondent had filed a direct appeal within 30 days

of his conviction, the conviction would still be valid for immigration purposes.

On the other hand, the respondent essentially argues that the language of

section 101(a)(48)(A) is ambiguous as to the “particular dispute in the case,”

id. at 340, specifically, the question of finality, and he claims that under case

law that preceded the enactment of the IIRIRA, his conviction is not final for

purposes of the immigration laws. It is not necessary to adopt either argument

to determine the issue presented in this case.3

A.

When Congress enacted the IIRIRA and defined the term “conviction” for

the first time, it expressed a clear intent to address convictions in the

deferred adjudication context. Congress was concerned that convictions in this

context should not be “dependent on the vagaries of State law” and intended

to prevent the various ameliorative State court proceedings from undermining

the immigration consequences of a violation of State criminal laws. Matter

of Punu, 22 I&N Dec. 224, 229 (BIA 1998). Congress achieved this result by

adopting almost verbatim key portions of our earlier decision in

Matter of Ozkok, supra, at 551-52, which set forth a standard for determining

the existence of a conviction for immigration purposes. But it also expanded

the Ozkok definition of a conviction by eliminating that part of the standard

under which a deferred adjudication was a conviction only if a judgment of

guilt could be entered “without availability of further proceedings” in which

3

In Puello v. Bureau of Citizenship and Immigration Services, 511 F.3d 324, 332

(2d Cir. 2007), the United States Court of Appeals for the Second Circuit, within

whose jurisdiction this case arises, reasoned in dicta that the statutory definition of

the term “conviction” in section 101(a)(48)(A) eliminated the finality requirement.

However, that case related to the effective date of a conviction and did not

involve a challenge based on the appeal of a conviction. Other circuit courts that

have addressed the principle of finality since the enactment of the IIRIRA have

applied disparate analyses to reach different conclusions, and none has considered the

issue in the context of a late-reinstated appeal. See Paredes v. Att’y Gen. of U.S.,

528 F.3d 196 (3d Cir. 2008); Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir.

2007); United States v. Saenz-Gomez, 472 F.3d 791 (10th Cir. 2007); United

States v. Garcia-Echaverria, 374 F.3d 440 (6th Cir. 2004); Montenegro v. Ashcroft, 355 F.3d

1035 (7th Cir. 2004); Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001).

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to contest the alien’s guilt. Thus, Congress provided that an alien who has a

deferred adjudication with a finding of guilt and a punishment, penalty, or

restraint on liberty has been convicted of the offense, regardless of the

potential for further ameliorative criminal proceedings to affect that

determination of guilt. See Matter of Punu, supra, at 227; see also H.R. Rep.

No. 104-828, at 224 (1996) (Conf. Rep.), 1996 WL 563320 (stating that the

“new provision, by removing the third prong of Ozkok, clarifies Congressional

intent that even in cases where adjudication is ‘deferred,’ the original finding

or confession of guilt is sufficient to establish a ‘conviction’ for purposes of

the immigration laws”).

At the time the IIRIRA was enacted, it was well established in immigration

law that a criminal conviction attains finality for immigration purposes

when procedures for direct appeal have been exhausted or waived. See

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

Morales-Alvarado v. INS, 655 F.2d 172, 175 (9th Cir. 1981);

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

well-accepted principle can be traced to the decision of the United States

Supreme Court in Pino v. Landon, 349 U.S. 901 (1955). 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.

See Matter of Punu, supra, at 227 (discussing the legislative history of the

term “conviction” in section 101(a)(48)(A) of the Act).4 With this backdrop

regarding the broad context of this issue and the statute, a forceful

argument can be made that Congress intended to preserve the long-standing

requirement of finality for direct appeals as of right in immigration law.

See Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 530-31

(1998) (holding that Congress implicitly adopted the Supreme Court’s

well-established definition of terms regarding a central issue in Indian law of

what constitutes “Indian country” when it adopted language “taken virtually

verbatim from” prior caselaw).

We need not resolve that issue, however, because the case before us

involves a late-reinstated appeal, not a direct appeal. At the time Congress

acted in 1996, there was no understanding of the effect on finality of

late-reinstated appeals similar to the well-established rule for direct appeals.

The Board expressly reserved this question less than 2 years before the

4

At the time, there were other provisions of the Act that expressly included a requirement

that a judgment be final, but Congress did not amend any of them. Compare former section

241(a)(2)(D) of the Act, 8 U.S.C. § 1251(a)(2)(D) (1994) (regarding the deportability of

“[a]ny alien who at any time has been convicted (the judgment on such conviction becoming

final)”), with section 237(a)(2)(D) of the Act, 8 U.S.C. § 1227(a)(2)(D) (2006) (same).

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enactment of the IIRIRA in Matter of Polanco, 20 I&N Dec. 894 (BIA 1994),

declining to decide whether late-reinstated appeals (also known as appeals

taken nunc pro tunc, or “now for then”) should be accorded the same treatment

with regard to finality as direct appeals as of right. Thus, regardless of the

strength of the argument that Congress intended to preserve the traditional

treatment of direct appeals, that argument fails in the context of late-reinstated

appeals because Congress could not have intended to preserve something that

did not exist.5

B.

Congress’s treatment of deferred adjudication proceedings in the IIRIRA

informs our approach to late-reinstated appeals because both procedures

present an added measure of delay and uncertainty regarding the consequences

of criminal convictions in immigration proceedings. In order to resolve the

issue left open in Matter of Polanco, supra, we look first to the statute.

Section 101(a)(48)(A) of the Act provides that a conviction exists when a

“formal judgment of guilt” is “entered by a court,” a requirement that is

satisfied here. Following the Ozkok rule in the context of deferred

adjudication, Congress also determined that a conviction occurs upon an

admission or finding of guilt and the imposition of “some form of punishment,

penalty, or restraint on the alien’s liberty.” Id. However, Congress eliminated

5

In stating that the respondent’s conviction should not be viewed as final, the dissent relies

in part on Jimenez v. Quarterman, 129 S. Ct. 681, 686 (2009), where the Supreme Court

determined that a Federal habeas corpus petitioner whose appeal was reinstated out of time

through a State collateral attack, before he had first sought habeas relief, did not receive a

final judgment until the conclusion of the direct appeal. However, in general, habeas corpus

law is not analogous to immigration law. See Matter of Aguilar-Aquino, 24 I&N Dec. 747,

752-53 (BIA 2009) (finding that the definition of “custody” in habeas corpus proceedings

does not govern immigration proceedings). First, the purpose of Federal habeas corpus

proceedings is to provide convicted defendants an avenue to collaterally attack the validity

of their convictions. See, e.g., Sawyer v. Smith, 497 U.S. 227, 234 (1990). However, aliens

may not contest the facts or merits of their convictions in immigration proceedings. Matter

of C-, 20 I&N Dec. 529, 532 (BIA 1992); Matter of McNaughton, 16 I&N Dec. 569, 571

(BIA 1978). In addition, under Federal habeas corpus law, a conviction is final only after

direct discretionary review is complete. Jimenez v. Quarterman, supra, at 684-86. By

contrast, the potential for discretionary review on direct appeal does not disturb the finality

of a conviction for immigration purposes. See Matter of Polanco, supra, at 896. Moreover,

the Supreme Court in Jimenez applied “the most natural reading of the statutory text” of the

Federal habeas statute. Jimenez v. Quarterman, supra, at 685. In this case, the language of

section 101(a)(48)(A) of the Act clearly supports our conclusion regarding the finality of

late-reinstated appeals for immigration purposes.

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the additional part of the Ozkok rule that exempted criminal aliens with a

deferred adjudication from the immigration consequences of a conviction if

they retained a right to pursue further proceedings to contest their guilt at an

unknown time in the future. In so doing, Congress reflected its concern about

the problems presented by the indeterminate nature of such proceedings and

clearly expressed its disfavor with aliens’ pursuit of avenues available under

State laws to allow them to delay indefinitely the conclusion of immigration

proceedings.

Even before Congress created a definition for the term “conviction” in the

IIRIRA, there existed a “long-standing rule” that whether a conviction exists

for immigration purposes “is a question of federal law and should not

depend on the vagaries of state law.” Matter of Ozkok, supra, at 549, 551 n.6

(citing Matter of A-F-, 8 I&N Dec. 429, 446 (BIA, A.G. 1959)). Some of the

problems arising from the various ameliorative procedures available under

State law were implicit in Matter of Polanco, supra, which involved a New

Jersey late-reinstated appeal procedure similar to that at issue in this case. The

New Jersey court rules required that a request to file a nunc pro tunc appeal be

made in a timely manner, although without a specific outside time limit.

Furthermore, the criminal court’s determination whether to grant a request

to file a late-reinstated appeal was “discretionary in nature” and therefore

went beyond simply deciding if it was deemed to have been filed in a

timely manner. Id. at 897. Thus, the procedure involved an unpredictable

and indeterminate delay in immigration proceedings with no reasonable

expectation that the alien would ultimately be granted relief from the

conviction.

The concerns present in Matter of Polanco regarding the finality of a

conviction subject to a late appeal process also exist in the New York

procedure in this case. Section 460.10(1)(a) of New York Criminal Procedure

Law provides for a direct appeal as of right within 30 days of a criminal

conviction. However, if a defendant fails to meet this deadline, a motion may

be filed within 1 year from the unmet deadline to present evidence showing

that certain enumerated factors resulted in the defendant’s failure to appeal.

Id. §§ 460.30(1)-(2); see also People v. Corso, 40 N.Y.2d 578 (1976). Thus,

a defendant may file a motion requesting permission to file a late-reinstated

appeal more than a year after he is convicted, provided that he also

demonstrates “due diligence” in filing the motion. Id. § 460.30(1). If the State

opposes the motion, the appellate court must determine if a hearing is required

and, if so, remand the matter to the trial court to conduct the hearing. Id.

§§ 460.30(2)-(5). Furthermore, the decision on the motion itself may be

appealed under certain circumstances. Id. § 460.30(6). Thus, while New York

law does have an eventual deadline for making a request to file a late appeal,

the statute permits motions to file an appeal to be made over a year after the

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criminal conviction, and the resolution of such motions has no time limit.

Ultimately, if the appellate court grants the motion, a defendant may be

provided an additional 30 days to actually file the late-reinstated appeal. Id.

§ 460.30(1).

This New York procedure introduces a layer of uncertainty and delay far

beyond that of a traditional appeal. This is, in part, a result of the long

deadline for filing a motion and the unlimited nature of its resolution, but also

because the procedure provides for a potentially extensive fact-based and

judgment-laden inquiry. For example, the State court must determine the

reason for the delay in filing a motion and whether the defendant acted with

“due diligence” in filing it.6 Id. § 460.30(1). The court could also be required

to resolve whether a public servant or a defendant’s attorney engaged in

“improper conduct.” Id. Thus, the late-reinstated appeal procedure under New

York law is very different from the typical direct appeal as of right, which

imposes prompt filing deadlines and requires only a ministerial act in

accepting a notice of appeal.

Concerns regarding uncertainty in removal proceedings are amplified in the

context of a motion to reopen, which is a disfavored process that imposes a

heavy burden on the moving party to show that reopening is warranted. See

INS v. Doherty, 502 U.S. 314, 323 (1992); INS v. Abudu, 485 U.S. 94, 107,

111 (1988). Finality and predictability are important principles in the law,

including in immigration law. See INS v. Abudu, supra, at 107 (“There is a

strong public interest in bringing litigation to a close as promptly as is

consistent with the interest in giving the adversaries a fair opportunity to

develop and present their respective cases.”).7

In this case, removal proceedings were initiated, the Immigration Judge held

a hearing, and the respondent was ordered removed, all before he even filed

his motion for a late-reinstated appeal in State court. He then sought to reopen

his removal proceedings based on a claim that his conviction is no longer final.

The respondent was permitted to reinstate the time to appeal his conviction

under a special State procedure that creates significant uncertainty and delay

in reaching an ultimate resolution regarding the existence of an otherwise final

6

We note that the respondent’s motion to file a late appeal was contested by the State

because of the length of the delay in filing the motion and the lack of adequate proof to

support it.

7

These interests are especially prevalent in a case such as this, where the respondent waited

until after he was ordered removed before even attempting to challenge the basis for his

removal order and has provided no explanation for this delay. Cf. Matter of Cerna, 20 I&N

Dec. 399, 403 (BIA 1991) (noting that “we are not favorably disposed to the practice of

waiting until the conclusion of the administrative appeal process to file a motion that seeks

to offer additional evidence regarding the matter previously in issue”).

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conviction. Congress intended to prevent the immigration laws from being

“dependent on the vagaries of State law” when it defined the term “conviction”

in section 101(a)(48)(A) of the Act. Under these circumstances, we find that

the respondent’s pending late-reinstated appeal does not undermine the finality

of his conviction for purposes of the immigration laws and conclude that it is

therefore not appropriate to reopen and terminate these proceedings.8

III. CONCLUSION

Given the indeterminate nature of the New York late appeal procedure

and Congress’s clear intent to give broad effect to the definition of a

conviction in the deferred adjudication context, we find that the respondent’s

conviction remains a valid factual predicate for the charge of removability.

We therefore conclude the Immigration Judge properly denied the motion to

reopen. Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

CONCURRING OPINION: Edward R. Grant, Board Member

I respectfully concur.

I join in the well-reasoned decision of the majority. While it may not be

absolutely necessary in this case to address the underlying question whether

the “finality” requirement is still applicable and binding in removal

proceedings, I would nevertheless do so. For the reasons cogently stated in the

dissent, I would find that the “finality” requirement does still apply to cases

where a direct appeal is pending or direct appeal rights have not been

exhausted.

Fortunately, it appears that both the Department of Homeland Security and

Immigration Judges continue to follow this rule. Even in those circuits where

the court of appeals has indicated that the finality rule is no longer binding, it

is a sound exercise of prosecutorial discretion, and in keeping with the goal of

uniform administration of the immigration laws, to refrain from initiating

8

A pending collateral attack also does not disturb the finality of a conviction and therefore

would not justify reopening of removal proceedings. See Matter of Adetiba, 20 I&N

Dec. 506, 508 (BIA 1992). If the respondent’s conviction is ultimately vacated, however,

he would be able to seek reopening to the same extent as an alien with a vacated conviction

resulting from a successful collateral attack. See Matter of Rodriguez-Ruiz, 22 I&N

Dec. 1378, 1380 (BIA 2000); cf. Saleh v. Gonzales, 495 F.3d 17, 24-25 (2d Cir. 2007).

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removal proceedings based on a criminal conviction until any right of direct

appeal from that conviction has been exhausted or waived.

For the reasons stated in the majority, this is just such a case. Removal

proceedings were held in abeyance until well after the statutory period for

direct appeal had expired. Those proceedings continued and resulted in

the entry of an order of removal. It was only then that the respondent chose

to take advantage of the unique “late-filed” appeal procedure available under

New York law. Just as the initiation of removal proceedings prior to

exhaustion or expiration of direct appeal rights would undermine the uniform

enforcement of immigration laws, allowing an alien to forestall such

proceedings, once properly begun, by filing a “late” appeal would impede the

administration of justice.

Exceptions to this ruling may apply if the alien were to present compelling

evidence of the likelihood of success on his late-filed criminal appeal. In such

circumstances, sound judgment would dictate that proceedings before the

Immigration Judge or this Board be held in abeyance until resolution of the

appeal. But no such showing has been made in this case.

CONCURRING OPINION: Roger A. Pauley, Board Member, in which

Patricia A. Cole, Board Member, joined

Although I join the majority opinion insofar as it addresses the finality

issue in the narrow context of statutes that permit the late reinstatement of a

direct appeal of a conviction, I write separately to respond to the dissenting

opinion insofar as it contends that finality still generally exists as a

requirement for a “conviction” for immigration purposes, notwithstanding the

plain language of section 101(a)(48) of the Immigration and Nationality Act,

8 U.S.C. § 1101(a)(48)(A) (2006), an assertion not gainsaid (and indeed

arguably supported in dicta) by the majority opinion. As explained herein, the

dissenting opinion is incorrect for many reasons.

I.

To begin with, the rationale of the dissent is incompatible with

Supreme Court authority. Demarest v. Manspeaker, 498 U.S. 184 (1991). To

comprehend why, imagine that no agency such as the Board ever existed and

that Congress were now creating the definition of a “conviction” in section

101(a)(48)(A) of the Act for the first time. It is undisputed that the definition

nowhere expressly embodies the requirement that, in immigration proceedings,

a conviction must have been affirmed on direct appeal or that the time for

taking a direct appeal must have expired in order for it to be deemed a

“conviction.” Ordinarily, and in the hypothetical circumstances described

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above, were Congress to enact such plain language which lacks a “finality”

requirement, I do not understand the dissenting opinion to deny that the text

would command obedience. I believe it does so here as well. The dissent,

however, purports to find contextual ambiguity in the otherwise clear and

complete definition provided by Congress,1 permitting those joining that

opinion to deem the finality concept implicitly preserved, arising from the

Board’s long-standing previous understanding that a “conviction” for

immigration purposes must have attained finality in the sense of having been

affirmed on direct appeal, or the waiver of, or elapsing of the time to take,

such an appeal having occurred. See Matter of Ozkok, 19 I&N Dec. 546, 552

n.7 (BIA 1988).

Unsurprisingly, no case law supports this novel proposition. To the

contrary, as noted above, it is squarely at odds with Demarest v. Manspeaker,

supra. Therein, the Court noted that the court of appeals below had “relied on

long-standing administrative construction of the statute denying attendance

fees to prisoners, and two Court of Appeals decisions to the same effect,

followed by congressional revision of the statute in 1978.” Id. at 190 (footnote

omitted). The Court, however, unanimously rejected the administrative and

judicial construction placed upon the statute, finding that the language of the

statute was clear and did not lead to absurd or bizarre results, and that

“administrative interpretation of a statute contrary to language as plain as we

find here is not entitled to deference.” Id. The situation in Demarest

v. Manspeaker is directly analogous, save only that there the agency’s past

interpretation of a term was supported by holdings of two appellate courts,

1

The dissent does not contend that the definition is incomplete, apart from its alleged failure

to incorporate the concept of finality. The only apparent basis to do so is that the definition

fails to state that a reversed conviction is not covered. Compare Matter of Pickering, 23 I&N

Dec. 621 (BIA 2003), where the Board noted that one court of appeals found the text of

section 101(a)(48)(A) so clear as to compel a finding that even a conviction reversed on the

merits remained a “conviction” for immigration purposes. However, the Board declined to

adopt this interpretation, deeming it to be contrary to our precedent. Id. at 624 n.2; see also

Lewis v. United States, 445 U.S. 55, 61 n.5 (1980) (rejecting as “extreme” the argument that

a reversed conviction remained a conviction for purposes of the statute punishing possession

of a firearm by a convicted felon, but noting that the statute would apply where, as here,

possession occurred while a conviction was pending on appeal). A well-recognized (indeed

the sole) exception to the axiom that plain language in a statute must be followed is that

doing so would lead to absurd or bizarre results. E.g., Demarest v. Manspeaker, supra.

Thus, Congress is not obliged to negate absurd or bizarre consequences that flow from a

literal application of the language it enacts, and accordingly its definition of a “conviction”

in section 101(a)(48)(A) is not incomplete for its omission to provide that reversed

convictions are not within its scope.

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which is not the case here. Thus, Demarest v. Manspeaker alone is a

refutation of the dissent’s analysis.2

Both the dissenting and the majority opinions invoke Alaska v. Native

Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998). But that case is not

analogous. Even assuming no distinction for statutory construction purposes

between prior Supreme Court decisions and administrative agency

interpretations, in terms of the respect deemed to be accorded them by

Congress, the Court in Alaska v. Native Village pegged its decision to the fact

that the legislative history of the statute at issue reflected that it was intended

by Congress to codify the Supreme Court’s own prior decisions. Id. at 530.

In contrast, all the dissent can muster by way of legislative history is

congressional silence. This is insufficient.

Moreover, Alaska v. Native Village construed a statute where Congress

adopted the entirety of the definition contained in the Supreme Court’s prior

decisions defining Indian country. Here, by contrast, Congress did not adopt

in whole the Board’s prior understanding of the term “conviction.” To the

contrary, it adopted only a portion thereof and indeed embodied as an express

(and executed in language) purpose to eliminate any requirement, previously

embodied in the Board’s prior practice and understanding, pertaining to

finality in the deferred adjudication context. To infer from this a purpose of

Congress to retain the principle of finality elsewhere in the definition, wholly

unsupported by any legislative language or history, is simply to make an

illogical leap. Thus, absent any wholesale adoption in the text of the definition

enacted as section 101(a)(48) of the Board’s previous understanding regarding

the necessity that a conviction have attained “finality,” or even any legislative

history reflecting an intent to preserve the principle of finality for types of

convictions other than deferred adjudications, reliance on Alaska v. Native

Village is unavailing.

In addition and significantly, Congress elected to define a “conviction”

very precisely, using the limiting term “means” instead of allowing for a

broader administrative or judicial interpretation by using the enlarging

term “includes” to communicate nonexclusivity. As the Supreme Court

has recognized, a “‘definition which declares what a term “means” . . .

2

Although Congress is presumed to be aware of an administrative or judicial interpretation

of a statute and to adopt that preexisting interpretation when it reenacts a statute without

change, Lorillard v. Pons, 434 U.S. 575, 580 (1978), that case and others like it are

inapposite because we are not dealing with a reenactment of a statute by Congress. Rather,

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of

Pub. L. No. 104-208, 110 Stat. 3009-546, embodied an unequivocal break with the prior

judicial and administrative requirement of finality of convictions in immigration proceedings

in that it included, for the first time, a statutory definition of the term “conviction” under the

Act.

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excludes any meaning that is not stated.’” Colautti v. Franklin, 439 U.S. 379,

392 n.10 (1979) (quoting 2A C. Sands, Statutes and Statutory Construction

§ 47.07 (4th ed. Supp. 1978)); see also Burgess v. United States, 128 S. Ct.

1572, 1578 n.3 (2008).

Furthermore, the dissenting opinion’s unwarranted creation of a new

exception to the plain language rule would tend to undermine the separation

of powers and confer upon the Board (and by extension all administrative

agencies charged with the interpretation of the statute or statutes they

administer) a power to influence the content of legislation derived from its

prior practice and understanding of a term, notwithstanding that Congress has

undertaken for the first time to define it and has nowhere incorporated that

understanding or practice in its definition. For Congress to be found to have

rejected the Board’s understanding that finality is a component of a conviction,

the dissent concludes, it is insufficient for Congress merely to fail to include

any reference to finality in its language. Silence in an otherwise complete

definition is not enough. The dissent’s remarkable position is that Congress,

partially constrained by the Board’s prior understanding of a “conviction,”

must have acted affirmatively in statutory language to repudiate it, before they

will acknowledge that it has been superseded.3 The dissent’s measured prose

cannot disguise the radical nature of its thesis, one that siphons lawmaking

authority from Congress and vests it in administrative agencies such as the

Board.

In sum and in essence, the dissenting opinion falls into fundamental error

in exalting the legislative history, consisting merely of an absence of

expression of intent to discard or alter the Board’s previous understanding that

a conviction requires finality, over the plain statutory language employed by

Congress that does just that in that it contains no such finality element. While

silence may in some circumstances be a useful clue in criminal investigations,

see, e.g., Sir Arthur Conan Doyle, Silver Blaze, in The Memoirs of Sherlock

Holmes (1892) (regarding the case of the dog that didn’t bark), it is not a

reliable indicator of congressional purpose in the face of otherwise plain

language. Indeed, the point of plain language is that it requires no explanation.

See Avco Corp. v. U.S. Dep’t of Justice, 884 F.2d 621, 623 (D.C. Cir. 1989)

(noting the waggish doctrine that it is only where the statutory history is

ambiguous that a court will look to the words of the statute).

3

Thus, in its conclusion, the dissenting opinion asserts that “[a]bsent clear statutory

language to the contrary,” it would find that the “rule of finality in immigration law

continues to apply.” Matter of Cardenas Abreu, 24 I&N Dec. 795, 823 (BIA 2009).

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II.

The regulations also support the conclusion that the definition of the

term “conviction” in section 101(a)(48) of the Act, enacted in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C of

Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), lacks a finality element.

The regulations contain no provision, applicable to removal proceedings under

section 240 of the Act, 8 U.S.C. § 1229a (2006), generally, that treats the term

“conviction” as defined in the Act. This fact further supports the notion that

the statutory language is clear and complete on its face and requires no

elaboration.

However, tellingly, in implementing the provisions of the Act dealing with

the expedited removal of nonlawful permanent resident aliens convicted of one

or more aggravated felonies, the Attorney General, in 1997 shortly after the

enactment of the IIRIRA, promulgated regulations that address section 238 of

the Act, 8 U.S.C. § 1228 (2006). The regulations provide in pertinent part that

for an alien to be subject to expedited removal, the alien must have “been

convicted (as defined in section 101(a)(48) of the Act . . .) of an aggravated

felony and such conviction has become final.” 8 C.F.R. § 1238.1(b)(iii)

(2008). If the definition of a “conviction” enacted by the IIRIRA bore the

understanding, as the dissent contends, that a conviction must have attained

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

the conviction must have become final. It is true that the regulation

carried forward a finality of conviction requirement in the regulations

implementing a similar provision in the Act prior to the IIRIRA. See 8 C.F.R.

§ 242.25(b)(iii) (1996). The fact remains, however, that the current regulation,

issued hard on the heels of the IIRIRA’s enactment of a definition of the term

“conviction” for the first time, coupled with the absence of any like regulation

specifying a finality principle applicable to removal proceedings generally, is

consistent with the clear language of the statute and reflects an understanding

that that definition itself embodies no finality requirement. A regulation is to

be construed like a statute, and it is a basic rule of construction, albeit not

woodenly applied, not to deem language therein to be superfluous. See, e.g.,

Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 840 (2008); Connecticut

Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992).

III.

Also as a matter of concern, the dissent’s position would place the Board in

opposition to the holdings of three courts of appeals that the concept of finality

did not survive the enactment of the definition of a “conviction” in section

101(a)(48)(A) of the Act. It would also be in conflict with the considered dicta

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to the same effect of two additional circuits, including the one in which this

case arises.4 The dissent’s attempt to depreciate the force of the decisions from

the United States Courts of Appeals for the Fifth, Seventh, and Tenth Circuits,

whose holdings are based on the plain language of the statute and are not

subject to being supplanted through the doctrine of deference afforded to

agency interpretations of ambiguous provisions,5 is misplaced.6 Moreover, for

its part, the dissent can point to no holding or even considered dicta of a court

of appeals in support of its analysis or result.7 Likewise, the dissent’s, and to

some extent the majority’s, reliance on or noting of the fact that Congress

explicitly retained the requirement of finality in a few selected provisions of

the Act, at best, does not aid the case that finality in a more general sense was

preserved. Indeed, that circumstance may well cut the other way. See Clay

v. United States, 537 U.S. 522, 528-29 (2003) (reiterating the maxim that

“[w]hen ‘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

4

Puello v . Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 332 (2d Cir. 2007)

(“IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or

waived before a conviction is considered final under the statute.”).

5

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

6

Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007); United States

v. Saenz-Gomez, 472 F.3d 791 (10th Cir. 2007); Montenegro v. Ashcroft, 355 F.3d 1035 (7th

Cir. 2004). I disagree with the dissent that these decisions should be discounted simply

because they did not arise in the immigration context. To the contrary, a statutory provision

that applies in multiple contexts must be interpreted consistently in all contexts. See

Clark v. Martinez, 543 U.S. 371, 380 (2005) (noting that even when “constitutional

concerns . . . are not present for aliens . . . who have not been admitted to the United

States . . . it cannot justify giving the same detention provision a different meaning when

such aliens are involved”); see also Leocal v. Ashcroft, 543 U.S. 1, 11-12 n.8 (2004).

Moreover, the dissent is mistaken in treating the above-cited decisions from the Fifth and

Seventh circuits as nonholdings. See Matter of Cardenas Abreu, supra, at 819. A reading

of the decisions belies this assertion. In both cases, the court decided the finality issue, even

though another basis (not relied on) for reaching the result existed.

7

The dissent’s statement that the “Third and Sixth Circuits have found finality to be

preserved,” Matter of Cardenas Abreu, supra, at 819, is a gross exaggeration, as in neither

case was the statement more than dicta uttered in passing. Moreover, neither decision

discussed or even cited the definition in section 101(a)(48) of the Act, in contrast to the

considered dicta in Puello v. Bureau of Citizenship and Immigration Servs., supra. In

addition, the dissent’s analogy to selected criminal recidivism provisions in which Congress

elected to require finality of prior convictions does not demonstrate a generally accepted

finality requirement because, as in section 101(a)(48)(A) of the Act, Congress has elected

not to include such a requirement in many other provisions in the criminal context that relate

to prior offenses or convictions. See, e.g., 18 U.S.C. §§ 228(c), 924(c), 1029(c), 1030(c),

2241(c), 2251(e), 2252(b) (2006).

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Congress acts intentionally and purposely in the disparate inclusion or

exclusion’” (quoting Russello v. United States, 464 U.S. 16, 23 (1983))).

IV.

Likewise, even the underlying premise of the dissenting opinion—that a

prior practice of the Board existed to require finality, which Congress

purportedly carried forward implicitly—is not borne out in this case. As the

majority opinion persuasively explains, while such a prior understanding

existed generally, see Matter of Ozkok, supra, no such prior practice or

understanding existed in the instant circumstances where the conviction

originally attained finality because the time to appeal expired, but the alien’s

right to appeal was restored due to a State procedure allowing, in certain cases,

for the recognition of a late appeal. Such a procedure has many of the

trappings of a collateral challenge to a conviction such that, at best from the

perspective of the dissent, prior to the IIRIRA’s enactment of the definition of

a “conviction,” it was debatable whether, even though the defendant’s motion

once granted restores a defendant’s full direct appeal rights, the conviction

should be deemed to have attained finality.8 In what appears to be the

only instance in which the Board, in a published decision, addressed the

finality question in this context, we expressly declined to decide it. Matter

of Polanco, 20 I&N Dec. 894, 898 (BIA 1994) (expressly reserving the

question of “what effect proof of a pending nunc pro tunc appeal might have

on the finality of [a] conviction.”). Absent a single prior Board precedent,

much less a long-standing practice addressing this situation, the dissent’s

reliance on the contextual ambiguity of the otherwise plain language of the

definition of a conviction enacted in 1996, arising from the Board’s allegedly

long-standing contrary understanding, falls by the wayside.

V.

Last, I wish to note that I have no quarrel from a policy perspective with

the concept of finality as previously applied by the Board. It is within a range

8

For example, in a State that has no procedure for a late reinstatement of appeal, if a

defendant were to succeed in a habeas corpus challenge based on an ineffective assistance

of counsel claim predicated on the failure of counsel to file an appeal as requested, the

remedy, as with the late reinstatement statute in this case, would be to allow the defendant

to take an appeal. But there is no pre-IIRIRA Board practice or precedent of which I am

aware to support the notion that such a conviction lacks finality for immigration purposes,

such that Congress should be deemed through incorporation of our practice or case law to

have embodied such a result in section 101(a)(48) of the Act.

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of reasonable policy choices available to Congress and serves to assure that an

alien found removable on the basis of a conviction, who has a direct appeal of

that conviction pending, may not be removed. On the other hand, that the

elimination of finality, as three courts of appeals have rightly concluded

was accomplished by section 101(a)(48)(A) of the Act, likewise is not

unreasonable. See supra note 6. There is no constitutional right to an appeal

of a conviction, and, indeed, for many years in our nation’s history no such

opportunity was provided. See Abney v. United States, 431 U.S. 651, 656

(1977). Moreover, even today a defendant may be compelled to serve in full

his or her sentence despite the pendency of a direct appeal. See, e.g.,

18 U.S.C. § 3143(b)(1) (2006). Congress could also consider that only a small

fraction of criminal appeals by defendants is successful, and that applying

“finality” as the Board had understood it prevents the Department of

Homeland Security (“DHS”) from instituting removal proceedings against, and

taking into custody, aliens whom it regards as dangerous and who are at large

pending appeal of their convictions.9 Thus, strong policy considerations also

support eliminating the finality requirement.10 But the point is that the policy

is not ours to make, but that of Congress, and Congress has clearly made its

decision through the plain language it adopted in section 101(a)(48)(A), which

contains no finality requirement.

VI. CONCLUSION

As demonstrated above, the position of the dissenting opinion is

unsupportable on a number of fronts. While it would reach an outcome that

9

Moreover, Congress could factor in that even if DHS opted to bring removal proceedings

based on an alien’s conviction in all situations where direct appeal was pending, it is unlikely

that a great change would ensue in terms of the removal of aliens with such pending appeals.

The time in which removal proceedings before Immigration Judges could be scheduled

would ensure that many appeals would be decided before those proceedings concluded.

When to such an interval is added the time for resolution of an alien’s appeal of right to the

Board, during which no alien may be removed, 8 C.F.R. § 1003.6 (2008), the percentage of

aliens with direct appeals remaining would be small indeed. Additionally, nothing compels

the DHS to physically remove an alien who has been ordered removed while a direct appeal

of a conviction bearing on removability remains unresolved.

10

I note that myriad other policy choices are available, apart from the all or nothing ones of

either requiring finality or not in every circumstance. For example, Congress might

reasonably opt to require finality for removability determinations, but not for purposes of

bars to eligibility for relief based on a conviction. Congress could also, if it deemed

public safety considerations to so warrant, require finality only for convictions involving

nonviolent crimes, or it could designate particular offenses or types of offenses, such as those

involving national security or sexual misconduct, as not requiring finality.

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some may applaud, and that Congress is free to adopt, it would bestow on the

Board a power it does not possess and would effectively legislate by adding

to, rather than interpreting, the definition of the term “conviction” in the Act.

Because I agree with the outcome and reasoning of the majority opinion as it

pertains to finality in the limited situation, as here, of a late-reinstated appeal,

and profoundly disagree with the position of the dissent that would find

finality in all contexts to have been preserved without a shred of support

therefor in the statutory language, I respectfully concur.11

DISSENTING OPINION: Anne J. Greer, Board Member, in which David

L. Neal, Vice Chairman; Neil P. Miller, Frederick D. Hess, Charles K.

Adkins-Blanch, and Linda S. Wendtland, Board Members, joined

The respondent seeks termination of proceedings because the criminal

conviction underlying the charge of deportation is pending on direct appeal.

I agree with the respondent that his conviction must still be “final” under

the statutory definition for a conviction at section 101(a)(48)(A) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2006), an issue

which the majority declines to reach. Unlike the majority, I conclude that the

pendency of a direct appeal pursuant to section 460.30 of the New York

Criminal Procedure Law means that the respondent’s conviction is not final for

immigration purposes.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of the Dominican Republic,

entered the United States as a lawful permanent resident on or about June 26,

1996. On or about October 11, 2007, the respondent was convicted of

burglary in the first degree in violation of section 140.30 of the New York

Penal Law. As a result, he was charged as deportable pursuant to

section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as

having been convicted of an aggravated felony under section 101(a)(43)(G) of

the Act. In removal proceedings, the Immigration Judge annotated the Notice

to Appear to indicate that the respondent admitted these factual allegations

11

Should further review by the Attorney General take place, see 8 C.F.R. §§ 1003.1(g), (h)

(2008), I note that if the respondent’s conviction were to be affirmed in the interim, this

would not moot the case because of the doctrine of “capable of repetition yet evading

review.” E.g., Honig v. Doe, 484 U.S. 305, 318-23 (1988). Moreover, the Board and the

Attorney General are not constrained by the “case or controversy” requirements of Article

III of the Constitution. See Matter of Luis, 22 I&N Dec. 747, 753 (BIA 1999).

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and, as to the conviction, had taken “no appeal yet.” On July 22, 2008, the

Immigration Judge ordered the respondent removed from the United States to

the Dominican Republic. On October 14, 2008, the respondent filed a timely

motion to reopen proceedings, presenting evidence that his criminal conviction

was pending on direct appeal pursuant to a September 26, 2008, grant of

his motion for an extension of time to appeal under section 460.30 of

New York Criminal Procedure Law. The facts are not disputed, including that

the respondent’s criminal conviction is now pending on direct appeal as of

right.

II. ISSUES

The first issue presented is whether a criminal conviction underlying a

charge of deportability or inadmissibility is required to attain finality under the

statutory definition of a conviction at section 101(a)(48)(A) of the Act, enacted

as part of the Illegal Immigration Reform and Immigrant Responsibility Act

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

If finality is required, the issue remains whether the respondent’s pending

late-filed appeal constitutes a direct appeal of his criminal conviction.

III. WHETHER FINALITY IS REQUIRED

Prior to the 1996 addition of a definition for the term “conviction” in the

Act, the prevailing standard to evaluate whether a conviction existed for

immigration purposes was set forth by this Board in Matter of Ozkok, 19 I&N

Dec. 546 (BIA 1988). Neither the Ozkok definition nor the statutory

definition explicitly addresses finality, although the Board explained in Ozkok

that a criminal conviction continued to require finality in order to sustain a

charge of deportation. Id. at 552 n.7. In enacting the IIRIRA, Congress chose

language to define a conviction in terms that mirror key portions of the

Board’s definition in Ozkok. The deliberate use of parallel language reinforces

the long-held administrative and judicial requirement of “finality” that was

incorporated in Ozkok. The source of the language enacted is needed to

ascertain the plain meaning of this statutory definition, which is silent

regarding finality. Significantly, in the Board’s other precedent decisions

examining the plain meaning of section 101(a)(48)(A) of the Act, we

considered the relevant context in the absence of specific statutory language

speaking to the issue at hand. That same approach applies here.

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A. History of Finality in the Immigration Context

Under Matter of Ozkok, supra, a State deferred adjudication that provided

for a contingent right to contest guilt did not equate to a conviction, whereas

State deferred adjudications that did not afford this contingency qualified.1

According to Ozkok, a conviction exists for immigration purposes where an

alien has had a formal judgment of guilt entered by a court or, if adjudication

of guilt has been withheld, where all of the following elements are 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, 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 his guilt or innocence of the original charge.2

This definition of a conviction was widely upheld by Federal circuit courts of

appeals.3

In addition to being required to meet the Ozkok criteria, an alien’s criminal

conviction did not support a finding of deportability until it became final.

Indeed, Ozkok specifically explained that the definition of a conviction

continued to incorporate the well-settled doctrine of finality. In particular, the

Board clarified that “[i]t is well established that a conviction does not attain a

sufficient degree of finality for immigration purposes until direct appellate

1

See, e.g., Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990) (holding that the Texas

deferred adjudication procedure, which provided for further proceedings on the issue of guilt

before entering judgment, did not constitute a conviction for immigration purposes),

superseded by statute as stated in Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); cf.

Yanez-Popp v. U.S. INS, 998 F.2d 231 (4th Cir. 1993) (finding that a grant of “probation

without judgment” under Maryland law, during which time the court had the power to enter

a judgment or adjudication of guilt without further proceedings upon a violation of

probation, met the Ozkok standard for conviction).

2

The statutory definition of a conviction at section 101(a)(48)(A) of the Act provides:

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—

(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.

3

See, e.g., Wilson v. INS, 43 F.3d 211 (5th Cir. 1995); Yanez-Popp v. INS, supra; Molina

v. INS, 981 F.2d 14 (1st Cir. 1992); Chong v. INS, 890 F.2d 284 (11th Cir. 1989).

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review of the conviction has been exhausted or waived.” Id. at 552 n.7 (citing

Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516

F.2d 565, 570 (6th Cir. 1975); Will v. INS, 447 F.2d 529 (7th Cir. 1971)).

Ozkok and the circuit court cases it cites regarding finality look to the

United States Supreme Court’s decision in Pino v. Landon, 349 U.S. 901

(1955) (per curiam), rev’g Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954). The

Supreme Court reversed the decision of the lower court by stating: “On the

record here we are unable to say 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.” Id.

Historically, a conviction attained finality for immigration purposes when

the alien had either waived or exhausted his direct appeal rights. See, e.g.,

Aguilera-Enriquez v. INS, supra. During the pendency of an alien’s direct

appeal of a criminal conviction, the former Immigration and Naturalization

Service accordingly did not commence deportation proceedings. If deportation

proceedings were initiated on the basis of a criminal conviction under direct

appellate review, the Immigration Judge had a legal basis to terminate the

proceedings. The line of cases following Ozkok prior to the IIRIRA’s

enactment continued to recognize that a conviction must attain a reasonable

degree of certainty through waiver or exhaustion of direct appeals of right to

serve as a basis for a charge of deportation under the Act. See, e.g., Wilson

v. INS, 43 F.3d 211 (5th Cir. 1995) (discussing finality in the context of waiver

or exhaustion of a direct appeal); cf. Matter of Onyido, 22 I&N Dec. 552, 555

(BIA 1999) (explaining that the respondent had a final conviction after the

enactment of the IIRIRA where he entered a guilty plea from which there was

no right of direct appeal).

In the IIRIRA, Congress defined a conviction as “a formal judgment of

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

Where adjudication of guilt is deferred, Congress enacted most of the Ozkok

test to determine whether a conviction exists. Given that Congress chose to

adopt Ozkok, except for its third prong addressing a specific category of

deferred adjudications, I conclude that Congress was aware of and accepted

the decisions of the Supreme Court, the United States courts of appeals, and

this Board underlying and affirming Ozkok, with regard to finality. Congress’s

adoption of existing language used in an established Board precedent is akin

to reenacting a portion of an existing statute while intending to preserve its

attendant administrative and judicial interpretations. See generally Lindahl

v. Office of Personnel Mgmt., 470 U.S. 768, 782 n.15 (1985) (“‘So too, where,

as 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.’” (quoting Lorillard v. Pons, 434 U.S. 575, 580-81 (1978))).

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Here Congress effectively enacted language from a Board precedent

decision defining a conviction, while clearly omitting one of the Board’s three

requirements in the deferred adjudication context. In these circumstances, it

can be presumed that Congress was aware of, and intended to preserve, the

administrative and judicial interpretations attendant to the portions of the

Board precedent it enacted, particularly given the importance of the finality

doctrine in the immigration context.

This view is consistent with the Supreme Court’s analysis in

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998). In

Alaska v. Native Village, the Court held that the term “dependent Indian

communities,” as used in a statute defining “Indian country,” was to be

interpreted consistently with judicial precedents issued prior to the statute’s

enactment. Id. at 528-31. These precedents required a Federal Government

set-aside for use as Indian land, together with Federal superintendence. While

the statute did not explicitly mention those well-established requirements, the

Court observed that the statute’s text derived directly from judicial precedent

and found that the statute did not alter the existing definition established by

case law. Likewise, Congress took the pertinent text of section 101(a)(48)(A)

of the Act verbatim from Matter of Ozkok, supra, and did not purport to alter

the recognition in Ozkok and other precedents of a finality requirement for

convictions serving as the factual predicate for deportability or inadmissibility.

See also Staples v. United States, 511 U.S. 600, 605 (1994) (observing that the

Court must construe a statute in light of the background rules of common law,

in which the requirement of some mens rea for a crime is firmly embedded);

cf. Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (observing that “[t]here

is no indication that Congress was aware of the administrative construction, or

of the appellate decisions, at the time it revised the statute”).

B. Board Interpretation of Section 101(a)(48)

The statutory language enacted by Congress to define a “conviction” is

silent as to the significance of both post-conviction ameliorative actions and

finality. Both must be addressed by the Board in interpreting this statute.4

See generally Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984); see also Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967 (2005). We have issued a series of precedent

decisions addressing the effect of State post-conviction actions on a conviction

4

See, e.g., Alim v. Gonzales, 446 F.3d 1239, 1249 (11th Cir. 2006) (“As we read

§ 1101(a)(48)(A), Congress did not address the effect to be given a conviction or nolo

contondere [sic] plea that is subsequently vacated because of a defect in the underlying

criminal proceeding.”).

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under section 101(a)(48)(A) of the Act. In these decisions, we looked beyond

the statute’s plain words and considered relevant context in construing the

statute, which approach applies here.

In our first decision addressing the meaning of the new definition set forth

in the IIRIRA, we relied on the statutory language but also examined the

legislative history, which explained congressional intent to eliminate the third

prong of Ozkok to avoid inconsistent outcomes for deferred adjudications.

Matter of Punu, 22 I&N Dec. 224, 227 (BIA 1998) (citing H.R. Rep. No.

104-828, at 224 (1996) (Conf. Rep.), 1996 WL 563320)). In Punu, we

identified Congress’s intent as set forth in the legislative history to “make it

easier to remove criminal aliens, regardless of specific procedures in States for

deferred adjudication.” Id. (quoting H.R. Rep. No. 104-879 (1997), 1997

WL 9288 at *295) (emphasis added). Accordingly, we found it to be “clear

that Congress deliberately modified the definition of conviction to include

deferred adjudications.” Id. (emphasis added). Next, in Matter of Roldan,

22 I&N Dec. 512 (BIA 1999), we recognized that the plain language of the

new statutory definition did not address the effect of State post-conviction

actions on a conviction for immigration purposes, requiring us to “‘look to the

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

statute as a whole.’” Id. at 521 (quoting K Mart Corp. v. Cartier, Inc., 486

U.S. 281, 291 (1988)).

In employing this contextual approach, we concluded in Roldan that certain

vacated or expunged convictions continue to serve as valid factual predicates

for a charge of deportation, despite a lack of express language to that effect in

section 101(a)(48)(A) of the Act. Then, in Matter of Rodriguez-Ruiz, 22 I&N

Dec. 1378 (BIA 2000), and Matter of Pickering, 23 I&N Dec. 621 (BIA 2003),

we concluded that convictions vacated on the basis of a procedural or legal

defect in the underlying criminal proceedings do not remain convictions

for immigration purposes.5 Our statutory interpretation of the conviction

definition regarding post-conviction modification has been well received by

5

As discussed, our Roldan/Rodriguez-Ruiz/Pickering approach relied on analysis

beyond the plain words contained in section 101(a)(48)(A) of the Act. Similarly, in

Matter of Eslamizar, 23 I&N Dec. 684, 686, 688 (BIA 2004), we looked beyond the “literal

reading of the conviction definition” to examine congressional intent to leave “the normal

and traditional meaning of a judgment” intact.

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the circuit courts,6 with the exception of the United States Court of Appeals for

the Fifth Circuit.7

Here, as with finality, section 101(a)(48)(A) of the Act does not

specifically speak to the effect of post-conviction actions addressed at altering

the underlying conviction. While the statute could be read to eliminate the

effect of all post-conviction measures, including substantive vacaturs, as stated

by the Eleventh Circuit, such an approach would be “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.” Alim v. Gonzales, 446

F.3d 1239, 1249 (11th Cir. 2006) (citing United States v. Sanges, 144 U.S.

310, 322 (1892)).8

As we said in Roldan, “Congress has approved the federal approach taken

in Ozkok, but has gone even further than Ozkok by eliminating the one prong

of our former definition which required an examination of how a specific

state structured its rehabilitative statute.” Matter of Roldan, supra, at 522. In

my view, Congress approved the Ozkok Federal approach that incorporated

finality, rather than eliminating the requirement through silence on the

subject. See generally Cannon v. Univ. of Chicago, 441 U.S. 677, 698-99

(1979) (finding the legal context at the time of a statute’s enactment relevant in

evaluating congressional action and stating that it was “not only appropriate

but also realistic to presume that Congress was thoroughly familiar with . . .

important precedents from . . . federal courts and that it expected its

6

See, e.g., Alim v. Gonzales, supra; Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005);

Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. 2005); Ali v. Ashcroft, 395 F.3d 722 (7th

Cir. 2005); Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. 2003).

7

See Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002) (finding a conviction to

remain a valid basis for removal despite being vacated or expunged for other than

immigration purposes); cf. Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005) (observing

that no other circuit disagrees with Pickering, but declining to revisit the panel decision in

Renteria-Gonzalez absent en banc intervention), vacating 369 F.3d 472 (5th Cir. 2004).

8

If an alien’s criminal conviction were ultimately overturned on direct appeal, the

conviction would no longer support a charge of removability. Removal of the individual

pending direct appellate review would lead to serious consequences should the conviction

be reversed. See, e.g., Staples v. United States, supra, at 616 (observing that a potentially

harsh penalty supports reading the statute to encompass a traditional mens rea requirement

not included in statutory language). If the conviction is ultimately overturned after removal

has occurred, the respondent cannot seek reopening of the removal proceedings. Matter of

Armendarez, 24 I&N Dec. 646 (BIA 2008) (construing 8 C.F.R. § 1003.2(d) (2008) to mean

that the Board and immigration courts lack jurisdiction to reopen the proceedings of aliens

who have been removed). Consequently, the majority opinion’s observation regarding the

potential availability of a motion to reopen after a conviction has actually been vacated does

not assist an alien who already has been removed.

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enactment to be interpreted in conformity with them”); see also Zuni Public

Schools Dist. No. 89 v. Dep’t of Educ., 127 S. Ct. 1534, 1545-46 (2007)

(noting that the “‘[m]eaning—or ambiguity—of certain words or phrases

may only become evident when placed in context’” (quoting FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000))).

The concurrence of Board Member Pauley disavows any intention to treat

convictions subjected to substantive vacaturs as giving rise to removability,

and it endeavors to justify its different approach in that context by pointing to

the maxim that permits deviating from plain statutory language when its literal

application would lead to absurd results. Notably, however, the Eleventh

Circuit did not employ such a rationale when it held that convictions that are

vacated for underlying defects become invalid for immigration purposes

in Alim v. Gonzales, supra. Rather, the court concluded that section

101(a)(48)(A) “does not specify” how to treat such convictions, but instead

“defines a conviction up through the time of sentence,” while “say[ing]

nothing about what effect, if any, the conviction or plea should be given when

there is a subsequent vacatur because the alien’s statutory or constitutional

rights were violated during the underlying criminal proceeding.” Id. at 1248

(emphasis added). The court thus found “statutory silence,” rather than relying

on plain language, and turned to addressing the reasonableness of the Board’s

construction of the statute. Id. at 1249.9

C. Circuit Court Consideration of Finality Under

Section 101(a)(48)(A)

Six circuit courts of appeals, including the Second Circuit, have addressed

finality under section 101(a)(48)(A) of the Act with differing results. None of

the decisions of these courts examines the issue as it is presented here, i.e.,

during the pendency of a direct appeal of the conviction supporting removal.

See, e.g., Alim v. Gonzales, supra, at 1248 (explaining that precedent dealing

with the ongoing validity of convictions set aside for State rehabilitative

purposes did not address, and therefore did not govern, the situation

presented). The Second Circuit has observed in dicta that the IIRIRA

9

In Staples v. United States, supra, the Court determined that the “substantial body of

precedent” on the question whether Congress intended to dispense with a conventional

mens rea element provided so helpful an interpretive tool that it was not even necessary to

rely on the rule of lenity, under which an ambiguous criminal statute is to be construed in

favor of the accused. Id. at 619 n.17; see also INS v. St. Cyr, 533 U.S. 289, 320 (2001); INS

v. Errico, 385 U.S. 214, 225 (1966) (“‘[S]ince the stakes are considerable for the individual

[charged with deportability], we will not assume that Congress meant to trench on his

freedom beyond that which is required by the narrowest of several possible meanings of the

words used.’” (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948))).

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eliminated the requirement for finality under section 101(a)(48)(A). Puello

v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 332 (2d Cir.

2007). Puello did not involve a challenge based on an appeal of a conviction.

The alien in Puello had pled guilty and was challenging the effective date of

the conviction for purposes of his naturalization application. The Fifth Circuit

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

noted in dicta that finality is no longer required. However, the court clarified

that no “appeal [was] actually pending for [the alien’s] . . . conviction.” Id. at

290; see also Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) (addressing deferred

adjudication rather than a direct appeal of a criminal conviction). Moreover,

in Garcia-Maldonado, the court relied chiefly on its prior holding in

Renteria-Gonzalez v. INS, supra, that even a conviction that has actually been

vacated for substantive legal defects would remain valid for immigration

purposes.

The Third and Sixth Circuits have found finality to be preserved. In

United States v. Garcia-Echaverria, 374 F.3d 440, 445 (6th Cir. 2004), the

court stated that “[t]o support an order of deportation, a conviction must be

final” in terms of exhaustion of direct appeal rights. In Garcia-Echaverria,

which is a criminal illegal reentry case, the court held that the alien’s

conviction was final for immigration purposes. The court found that the

appeals at issue were “collateral attacks upon Garcia-Echaverria’s conviction,”

filed after the time expiration of the direct appeal deadline, and concluded that

his “conviction was final for removal purposes.” Id. at 446. Most recently, in

Paredes v. Attorney General of U.S., 528 F.3d 196, 198 (3d Cir. 2008), the

court, quoting the now superseded Ozkok as controlling without discussing the

statutory conviction definition, observed 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.’”

While the Tenth Circuit has held that finality is no longer required in

United States v. Saenz-Gomez, 472 F.3d 791, 794 (10th Cir. 2007), which

arose in the sentence enhancement context, I observe that at the time of the

court’s decision, the alien’s criminal appeals had already been dismissed by

the New Mexico Court of Appeals and the New Mexico Supreme Court. Id.

at 792. Recognizing that the court held that a conviction already existed for

immigration purposes at the time of the alien’s removal from the United States,

prior to defense counsel’s filing of his direct criminal appeal, I respectfully

disagree with that aspect of the holding. In Montenegro v. Ashcroft, 355 F.3d

1035, 1037 (7th Cir. 2004), the Seventh Circuit’s consideration of finality was

also moot because the alien’s direct appeals had been exhausted at the time of

the Immigration Judge’s decision, and the United States Supreme Court denied

his petition for certiorari almost 5 years before the Seventh Circuit’s decision.

See Montenegro v. Illinois, 525 U.S. 1158 (1999) (denying certiorari).

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In Griffiths v. INS, 243 F.3d 45, 53 n.3 (1st Cir. 2001), the court

highlighted the distinction between a deferred adjudication and a direct appeal

for purposes of finality. In Griffiths, the First Circuit reserved the question

whether finality remains intact, agreeing with the Board that the alien had been

the subject of a deferred adjudication, which does constitute a conviction under

the section 101(a)(48)(A) statutory definition. Significantly, in Griffiths, the

court observed that “[t]here are substantial practical differences between the

situation faced by a defendant currently exercising a direct appellate right and

that faced by a defendant with a theoretically available right to appeal.” Id. at

54.10

Thus, the circuit court decisions—both those that find the requirement of

finality retained and those that find it superseded—offer conflicting statements

in circumstances different from the instant case that heighten the Board’s

responsibility to interpret the Act. See generally Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., supra (holding that a court’s prior judicial

construction of a statute prevails over an agency construction that is otherwise

entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., supra, only if the prior court decision holds that the

construction follows from the unambiguous terms of the statute and thus leaves

no room for agency discretion).

D. Finality Preserved Elsewhere in the Act

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. See,

e.g., sections 237(a)(2)(D), 238(c)(3)(A)(iii), 241(a)(4)(B) of the Act, 8 U.S.C.

§§ 1227(a)(2)(D), 1228(c)(3)(A)(iii), 1231(a)(4)(B) (2006). We find reading

finality out of the Act in this manner to be impermissible because it fails to

10

Griffiths involves the same “on file” procedure at issue in Pino v. Landon, supra, that

“‘suspend[ed] the adjudicative process, including the defendant’s right to appeal, until such

time as the court reactivates or makes some further disposition of the case.’” Griffiths v. INS,

supra, at 51 (quoting White v. INS, 17 F.3d 475, 479 (1st Cir. 1994)). Pino did not provide

a rationale for concluding that the Massachusetts “on file” procedure failed to meet the

finality requirement and did not set forth a finality standard. As discussed, extensive case

law came to consensus in defining finality for immigration purposes, culminating in the

Ozkok standard. Under the third prong in Ozkok, the Pino/Griffiths “on file” procedure

would not equate to a conviction because it constitutes a deferred adjudication that could

allow for further proceedings on guilt or innocence in the future. Today, under the section

101(a)(48)(A) statutory definition, an attenuated possibility of obtaining appellate review for

a deferred adjudication has been specifically defined as not detracting from the finality of

a conviction for immigration purposes. Matter of Punu, supra.

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“interpret the statute ‘as a symmetrical and coherent regulatory scheme’ . . .

and ‘fit, if possible, all parts into an harmonious whole.’” FDA v. Brown

& Williamson Tobacco Corp., supra, at 133 (quoting Gustafson v. Alloyd Co.,

513 U.S. 561, 569 (1995), and FTC v. Mandel Brothers, Inc., 359 U.S. 385,

389 (1959)). 11

IV. WHETHER A PENDING APPEAL UNDER SECTION 460.30

OF THE NEW YORK CRIMINAL PROCEDURE LAW

IS A FINAL CONVICTION

Direct appeals for purposes of finality are interpreted to mean direct

appeals of right, not including the potential for discretionary review on direct

appeal. For example, the Board held in Matter of Polanco, 20 I&N Dec. 894

(BIA 1994), that an alien who did not exercise his direct appeal of right under

New Jersey law had a final conviction, despite the potential for seeking a

discretionary nunc pro tunc appeal. Of significance to the Board in Polanco

were the indeterminate time available to file the appeal and the appeal’s

discretionary nature. The majority and concurring opinions maintain that

because we left open the question whether the authorization of a discretionary

nunc pro tunc appeal would render a conviction not final for immigration

purposes in Matter of Polanco, supra, there is no history of administrative

applications of the finality rule in the “late appeal” context. This position

overlooks our conclusion in Polanco that the kind of “late appeal” at issue was

like a collateral attack, rather than a direct appeal, because the pertinent State

law set forth no deadline for seeking authorization to file the late appeal, and

the decision whether to authorize the appeal was largely discretionary. Cf.

Jimenez v. Quarterman, 129 S. Ct. 681 (2009) (finding that for purposes of

triggering the limitations period for Federal habeas review, the date of the

conviction’s finality was the date of conclusion of the direct appeal that the

State court had granted a right to file out of time).

I must respectfully disagree with the majority opinion’s characterization of

New York’s procedure for obtaining a nunc pro tunc extension of the time for

taking a direct criminal appeal as creating too much “uncertainty and delay”

11

The Pauley concurrence argues that the regulatory requirement at 8 C.F.R.

§ 1238.1(b)(1)(iii) (2008) that convictions be final to support an order of expedited removal

supports reading section 101(a)(48)(A) as not including finality. However, the regulation

contained the exact same finality requirement prior to enactment of section 101(a)(48)(A).

8 C.F.R. § 242.25(b)(1)(iii) (1996). Further, regulatory emphasis on finality in the expedited

removal context, where removal occurs quickly without proceedings before an Immigration

Judge, does not undermine its vitality in adversarial removal proceedings.

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to affect a conviction’s finality for immigration purposes. Matter of Cardenas

Abreu, 24 I&N Dec. 795, 801 (BIA 2009). Section 460.30(1) of the New York

Criminal Procedure Law provides for a late appeal under only very limited

circumstances, requiring the defendant to demonstrate that his failure to file an

appeal during the normal time period resulted from either (a) “improper

conduct of a public servant or improper conduct, death or disability of the

defendant’s attorney,” or (b) “inability of the defendant and his attorney to

have communicated, in person or by mail, concerning whether an appeal

should be taken, prior to the expiration of the time within which to take an

appeal[,] due to [the] defendant’s incarceration in an institution and through

no lack of due diligence or fault of the attorney or defendant.” Further, the

defendant must exercise due diligence in filing his extension motion, and in

any case must do so not more than 1 year after the normal appeal period’s

expiration. Id. Although the court may order further fact-finding if necessary,

the extension motion “must” ultimately be granted if a legal basis for it is

ultimately demonstrated. Id. §§ 460.30(3)-(5).

This procedure is a far cry from the New Jersey procedure that was

involved in Matter of Polanco, supra. In that case we found it “significant”

that there were “no time constraints whatsoever to limit the period” during

which permission to take a nunc pro tunc appeal could be sought. Id. at 897.

We also relied heavily on New Jersey’s treatment of such motions as

“discretionary in nature.” Id. Although the majority opinion observes that

New York’s implementation of its procedure for determining whether its

mandatory late-appeal criteria have, in fact, been satisfied can potentially

result in time delays of indeterminate length, the same could be said of the

process for adjudication of criminal appeals generally. But Congress has never

determined that such timing considerations outweigh the importance of

ensuring that a conviction has attained a sufficient degree of finality before it

can give rise to a removal order.

Moreover, the fact that New York in this instance has actually authorized

a late criminal appeal necessarily means that it has determined that the

respondent has, in fact, demonstrated, after exercising due diligence, that his

failure to file a timely appeal resulted from improper conduct by a public

servant or by the respondent’s criminal defense attorney, the death or disability

of that attorney, or an inability of the respondent and his attorney to

communicate in a timely manner about a potential criminal appeal because of

his incarceration, and through no fault of his own. If New York wishes to

authorize extensions of time for filing direct criminal appeals under these kinds

of circumstances, I do not believe that it is the province of this Board to

effectively determine for immigration purposes that such appeals are not

legitimately “direct” after all. Indeed, for purposes of removal proceedings,

this Board, the Attorney General, or Congress has determined that the same

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kinds of circumstances can warrant tolling or (in at least one circumstance)

negation of an otherwise applicable deadline. See Matter of Compean,

Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009) (holding that, in the exercise

of discretion, the Board may toll the deadline for filing a motion to reopen

where the alien demonstrates, and exercises due diligence in discovering,

deficient performance of counsel); section 240(b)(5)(C)(ii) of the Act, 8 U.S.C.

§ 1229a(b)(5)(C)(ii) (2006) (providing that a motion to reopen and rescind an

in absentia order may be filed “at any time” if the alien demonstrates that he

was in Federal or State custody at the time of his hearing, and that his failure

to appear was through no fault of his own). Although the majority opinion

would find it determinative that New York’s procedure for extending criminal

appeal deadlines nunc pro tunc is not equivalent to “the typical direct appeal

as of right, which imposes prompt filing deadlines and requires only a

ministerial act in accepting a notice of appeal,” Matter of Cardenas Abreu,

supra, at 801, I would not impose such inflexible conditions on direct appeals

for the purpose of determining the finality of a conviction for immigration

purposes, particularly when we have not done so in the context of setting

deadlines for motions filed in removal proceedings.

V. CONCLUSION

Absent clear statutory language to the contrary, I would find that the

historically accepted rule of finality in immigration law continues to apply

when a charge of removal requires a criminal conviction. In doing so, I

recognize that the consequences of removal in some cases might very well be

considered severe enough to ensure that a reasonable degree of finality has

been attained in terms of exhaustion or waiver of direct appeals of right,

essentially ensuring that no premature removal occurs. I do not believe that

Congress’s explicit concern over deferred adjudications, which by definition

provide an opportunity for mitigation after the establishment of guilt,

encompasses a challenge to guilt through the direct appeals process.12

In my view, the New York statute allowing for late-filed direct appeals

preserves a respondent’s direct appeal rights. As such, the conviction does not

trigger civil removal consequences for an alien—if the late-filed appeal is

accepted by the appellate court and until it is resolved. Accordingly, I would

sustain the respondent’s appeal and terminate removal proceedings.

12

Deferred adjudication, also known as a “deferred judgment,” is defined as a “judgment

placing a convicted defendant on probation, the successful completion of which will prevent

entry of the underlying judgment of conviction.” Black’s Law Dictionary 454, 859 (8th ed.

2004).

823