27 I. & N. Dec. 420
BIA2018Background
- Respondent: LPR from the Dominican Republic; convictions in 1993 (attempted criminal sale, NY Penal Law §220.39 attempt) and 2016 (criminal possession, NY Penal Law §220.16(12)).
- Immigration Judge (IJ) found respondent removable under INA §237(a)(2)(A)(i) for a crime involving moral turpitude (based on the drug-sale attempt) and denied cancellation of removal and former §212(c) relief.
- While appeal to the Board was pending, the respondent obtained New York appellate permission to file a late appeal of the 2016 conviction and argued that a direct appeal pending in state court means the conviction is not "final" for immigration purposes, restoring eligibility for former §212(c).
- The Board affirmed that the 1993 attempted sale offense is categorically a crime involving moral turpitude under the categorical approach (intent/knowledge + inherently reprehensible conduct).
- The Board considered whether the IIRIRA statutory definition of "conviction" (INA §101(a)(48)(A)) eliminated the pre-IIRIRA rule that a conviction is not final for immigration purposes until direct appeals are exhausted or waived.
- Because respondent produced evidence that a timely (late) direct appeal had been permitted, the Board remanded to the IJ to examine the appeal's status and basis and to allow further evidence/argument.
Issues
| Issue | Plaintiff's Argument (Respondent) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Finality: whether a conviction is "final" for immigration purposes while a direct appeal is pending | The 2016 conviction is not final because a direct appeal was filed within the appeal period (late leave granted), so it cannot be used to support removability or to bar §212(c) relief | IIRIRA’s definition of "conviction" makes a trial-court judgment sufficient; the historic finality rule no longer applies | Board: The long‑standing finality rule survives IIRIRA; conviction is not final until direct appellate review exhausted or waived, but presumption of finality arises once appeal period lapses; respondent rebutted presumption—remand to IJ to evaluate appeal status and merits |
| Categorical determination: whether attempted sale of a controlled substance is a crime involving moral turpitude | Respondent: offense may not be moral turpitude (e.g., medicinal sales, lack of reprehensible intent) | DHS/IJ: sale/distribution of controlled substances involves reprehensible conduct and requires knowledge/intent; attempt shares mens rea | Board: Affirmed IJ—attempted sale categorically involves moral turpitude (knowledge/intent + inherently reprehensible conduct) |
| Eligibility for cancellation of removal under INA §240A(a) (continuous residence) | Respondent argued eligibility | DHS: 1993 conviction interrupted continuous residence | Board: Affirmed denial—respondent failed to show 7 years continuous residence after admission due to 1993 conviction |
| Effect of non-merits post-conviction actions (e.g., sentence appeals, rehabilitative vacaturs) on immigration finality | Respondent argued pending state appeals/court actions eliminate conviction for immigration purposes | DHS: Only vacaturs based on merits/procedural defects in underlying conviction should negate conviction; rehabilitative or sentence-only challenges do not | Board: Appeals or collateral attacks that do not challenge merits will not negate finality; vacaturs on legal merits will remove immigration effect |
Key Cases Cited
- Pino v. Landon, 349 U.S. 901 (1955) (Supreme Court reversing deportation where record did not show conviction had attained finality)
- Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324 (2d Cir. 2007) (dicta: IIRIRA eliminated requirement that direct appeals be exhausted)
- Walcott v. Chertoff, 517 F.3d 149 (2d Cir. 2008) (accepting that conviction was not final for immigration purposes until direct appellate review exhausted)
- Orabi v. U.S. Attorney General, 738 F.3d 535 (3d Cir. 2014) (holding finality requirement survives IIRIRA—direct appeals must be exhausted or waived)
- United States v. Garcia-Echaverria, 374 F.3d 440 (6th Cir. 2004) (treating conviction as not final absent exhaustion or waiver of direct appeal)
- Planes v. Holder, 652 F.3d 991 (9th Cir. 2011) (interpreting §101(a)(48)(A) to require only trial-court judgment of guilt; concluding IIRIRA eliminated finality requirement)
- Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004) (holding conviction was final for immigration purposes despite pending post-conviction petitions)