Omar Gomaa Orabi v. Attorney General United States
2014 U.S. App. LEXIS 18
| 3rd Cir. | 2014Background
- Orabi, an Egyptian citizen and longtime LPR since 1996, was convicted in SDNY in 2010 of fraud-related offenses and aggravated identity theft, and sentenced to 70 months; his appeal to the Second Circuit remains pending.
- DHS initiated removal proceedings in 2012, charging Orabi as removable for an aggravated felony; DHS moved to withdraw the charge after Orabi appealed, but the IJ reinstated it.
- The BIA dismissed Orabi’s appeal, treating his conviction as final for immigration purposes notwithstanding the pending direct appeal, citing Planes and related reasoning.
- In 2013 the Government notified that Orabi had been deported to Egypt but that ICE could return him to the U.S. under relevant ICE regulations, preserving jurisdiction.
- Orabi petitions for review challenging whether the conviction was final for immigration purposes while the Second Circuit appeal was pending, a question central to jurisdiction here.
- The district court record shows the Second Circuit docket is controlling for the status of the appeal affecting immigration finality; the court ultimately reviews the finality issue de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IIRIRA eliminated the finality requirement for convictions | Orabi: finality requirement eliminated by IIRIRA’s definition of conviction. | Government: IIRIRA altered the definition but did not abolish the finality rule for direct appeals. | No; finality for direct appeals remains applicable. |
| Whether pendency of a direct appeal precludes using a conviction as a basis for removal | Orabi: direct appeal pending prevents finality for immigration purposes. | Government: pending appeal can still yield a conviction for removal under the IIRIRA definition. | Pendency does not foreclose finality under the INA; the finality rule remains viable. |
| What is the proper governing standard for finality post-IIRIRA and should the BIA's ruling be affirmed | Orabi: Ozkok-based finality controls; IIRIRA did not erase direct-appeal finality. | Government: Planes-style interpretations align with IIRIRA’s broad definition of conviction. | Ozkok/Paredes framework remains; the BIA’s finality conclusion was incorrect; we reverse. |
Key Cases Cited
- In re Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (three-element test for conviction when adjudication is withheld)
- Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008) (finality preserved for direct appeals; collateral attacks differ)
- Planes v. Holder, 686 F.3d 1033 (9th Cir. 2012) (disagreement on whether finality is required under the IIRIRA definition)
- Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) (historical context on finality and deferred adjudications)
- Puello v. Bureau of Citizenship & Immig. Servs., 511 F.3d 324 (2d Cir. 2007) (IIRIRA effects on finality in removal context)