Matter of Roberto CARDENAS ABREU, Respondent
File A046 046 300 - Marcy, New York
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 4, 2009
24 I&N Dec. 795 (BIA 2009)
Interim Decision #3641
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
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,
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
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
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
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
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
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
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
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,
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
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,
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” . . .
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).
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,
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,
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
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
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
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,
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,
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.
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
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.
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
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))).
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
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
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
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
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).
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,
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”
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
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.