Abreu v. HolderAbreu v. Holder
Petitioner Roberto Cardenas Abreu (“petitioner” or “Abreu”) seeks review of a May 4, 2009, 2009 WL 1216566, decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an immigration judge (“IJ”) that denied petitioner’s motion to reopen his removal proceedings. The IJ ordered petitioner removed pursuant to
Prior to its amendment in 1996, the Immigration and Naturalization Act (“INA”) did not define the term “conviction,” although courts had long understood it to require some degree of finality, including exhaustion of direct appellate review. See, e.g., Marino v. INS, 537 F.2d 686, 691 (2d Cir.1976) (“[A]n alien is not deemed to have been ‘convicted’ of a crime under the [INA]” until “direct appellate review of the conviction (as contrasted with collateral attack) has been exhausted or waived.”) (relying on Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955)). In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”),
Petitioner argues that the IIRIRA’s definition of conviction did not disturb the INA’s longstanding finality requirement, and also that the BIA erred in holding that his late-reinstated direct appeal had no effect on the finality of his conviction. The government’s position is unclear. Before the BIA, the government argued that the IIRIRA abolished any finality requirement for convictions. In re Cardenas Abreu, 24 I. & N. Dec. at 797 (noting that the Department of Homeland Security argued “that even if [Abreu] had filed a direct appeal within 30 days of his conviction, the conviction would still be valid for immigration purposes”). In its brief to this Court, the government takes inconsistent positions, arguing at one point that the statutory definition of conviction is unambiguous, “extends to all formal judgments of guilt entered by the court, and makes no reference to the availability of further proceedings, i.e., appeals, following this initial entry of judgment,” Respondent’s Br. 28, while arguing elsewhere that the question of finality is not before our Court, id. at 46. At argument, the government declined to take a position on whether the statutory definition of conviction embodies some form of a finality requirement.
In interpreting the statutory definition of conviction, the BIA recognized that, “[i]nitially, [it] must determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” In re Cardenas Abreu, 24 I. & N. Dec. at 796 (internal quotation marks omitted). It noted both the government’s view that the IIRIRA’s definition of conviction unambiguously abolished any finality requirement, and petitioner’s argument that the statutory language is ambiguous when viewed in the context of case law that preceded the passage of the IIRIRA. Id. at 797. It declined, however, to adopt either argument, holding instead that petitioner’s late-reinstated appeal could be distinguished from a timely appeal, and that a late-reinstated appeal does not undermine the finality of a conviction. Id. at 799–802.
In attempting to distinguish petitioner’s late-reinstated appeal from a timely filed direct appeal, the BIA misinterpreted New York law and therefore abused its discretion. Assuming arguendo that the finality requirement remains in effect after the passage of the IIRIRA, an appeal reinstated pursuant to
In these circumstances, we think a remand is appropriate for the BIA to address, in the first instance, whether the IIRIRA’s definition of conviction is ambiguous with respect to the finality requirement. Although the BIA properly recognized this as the first step of its inquiry, it declined to address ambiguity and instead denied petitioner’s motion to reopen based on an erroneous interpretation of
We intimate no view on whether the statute is, in fact, ambiguous. We recognize, moreover, that we owe no deference to the agency’s position on this question. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”). Nevertheless, even when our review of a question is de novo, the agency’s views can be helpful and often persuasive. Cf. Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 85 (2d Cir.2009) (explaining that, although our review of summary judgment is de novo, “[w]e are entitled to the benefit of the district court’s judgment, which is always helpful and usually persuasive”) (quoting Bedford v. Portuondo, 234 F.3d 128, 130 (2d Cir.2000)). Accordingly, we think a remand is appropriate to permit the BIA to express its views on this question. We hope that, on remand, the BIA will have the benefit of a more coherent position from the government.
CONCLUSION
For the foregoing reasons, the petition for review is GRANTED. The order of the Board of Immigration Appeals is VACATED and the cause is REMANDED for further proceedings consistent with this order. In the event of a subsequent appeal in this case, the matter will be assigned to this panel.
Notes
(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 defendant’s incarceration in an institution and through no lack of due diligence or fault of the attorney or defendant.