26 I. & N. Dec. 555
BIA2015Background
- Respondent Ulices Montiel, a Mexican national and lawful permanent resident, was convicted by jury (Nov. 14, 2013) in the S.D. Cal. for unlawful transportation of aliens (8 U.S.C. § 1324(a)(1)(A)(ii)) and timely appealed to the Ninth Circuit.
- The Immigration Judge (IJ) found the conviction an aggravated felony and concluded it was final for immigration purposes, ordering removal (June 10, 2014).
- The respondent’s direct criminal appeal remains pending in the Ninth Circuit (No. 13-50609).
- Parties filed a joint motion to administratively close removal proceedings pending resolution of the direct criminal appeal; supplemental briefing on finality completed.
- The Board considered whether administrative closure is appropriate under its multi-factor Avetisyan framework and whether the pendency of a direct appeal justifies holding the immigration case in abeyance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proceedings should be administratively closed while respondent’s direct criminal appeal is pending | Parties jointly requested administrative closure to await Ninth Circuit resolution | DHS opposed or deferred but submitted position in briefing (issue whether conviction final not decided) | Granted: Board administratively closed proceedings for administrative efficiency given circumstances |
| Whether a conviction must be "final" (no pending direct appeal) to support removability under INA §101(a)(48)(A) | Respondent argued removal should await finality of criminal conviction | Government argued conviction can support removability despite pending appeal (not resolved by Board here) | Not decided: Board closed case without resolving finality question |
| Whether the pendency of a direct appeal generally weighs in favor of administrative closure | Parties argued pendency materially affects outcome and warrants delay | DHS could argue closure inappropriate if appeal frivolous or delay dilatory | Board held pendency can warrant administrative closure depending on circumstances (evaluated under Avetisyan factors) |
| Whether the case’s particular facts (jury conviction; appeal on guilt) affect closure decision | Respondent noted jury trial and appeal targeting conviction (not sentence) increase significance | DHS noted Ninth Circuit precedent permitting removability despite non-final convictions | Board considered these facts relevant and found closure appropriate given potential to negate removability if appeal succeeds |
Key Cases Cited
- Planes v. Holder, 652 F.3d 991 (9th Cir. 2011) (Ninth Circuit held finality not required to support removability)
- Orabi v. Att’y Gen. of U.S., 738 F.3d 535 (3d Cir. 2014) (Third Circuit held conviction does not support removability while direct appeal pending)
- Abreu v. Holder, 378 F. App’x 59 (2d Cir. 2010) (addressing interplay of finality and removability; vacating BIA decision)