J. M. ACOSTA
A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived. - Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.
- Appeals, including direct appeals, and collateral attacks that do not relate tо the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.
FOR RESPONDENT: Nicholas John Phillips, Esquire, Albany, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Perl, Assistant Chief Counsel
BEFORE: Board Panel: KELLY and GREER, Board Members. Concurring and Dissenting Opinion: MALPHRUS, Board Member.
KELLY, Board Member:
In a decision dated August 31, 2017, an Immigration Judge found the respondent removable under
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 March 11, 1992. On May 18, 1993, he pled guilty to attempted criminal sale of a controlled substance in the third degree in violation of
Based on the respondent‘s 1993 conviction, the Immigration Judge found him removable under
While his appeal was pending, the respondent filed a motion to remand. In support of his motion, he submitted evidence that on October 10, 2017, the Appellate Division of the Supreme Court for the First Judicial Department in the County of New York granted his motion for leave to file a late appeal of his 2016 conviction and deemed his notiсe of appeal to be timely filed. The respondent argues that because a direct appeal of that conviction is now pending, it lacks the requisite finality to qualify as a “conviction” for immigration purposes under
II. CRIME INVOLVING MORAL TURPITUDE
To determine whether the respondent‘s State drug offense is a crime involving moral turpitude, we employ the categorical approach, which requires us to “focus on the minimum conduct that has a realistic probability of being prosecuted under the [elements of a] statute of conviction, rather than on the facts underlying the respondent‘s particular violation of that statute,” to see whether those elements categorically “fit[] within the generic definition of a crime involving moral turpitude.” Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016); see also Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (per curiam).
“To involve moral turpitude, a crime requires two essentiаl elements: reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino, 26 I&N Dec. at 834; see also Efstathiadis, 752 F.3d at 595. Conduct is “reprehensible” if it is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Silva-Trevino, 26 I&N Dec. at 833 (citation omitted). A “culpable” mental state is one that requires deliberation or consciousness, such as specific intent, knowledge, willfulness, or recklessness. Id. at 834.
The respondent was convicted of attempted criminal sale of a controlled substance in the third degree under New York law.
We are unpersuaded by the respondent‘s assertion that the intent in selling a drug may not be evil, such as where the seller‘s intent is to relieve another person‘s medical condition. This argument is unavailing, particularly where, as here, a law that specifically prohibits the intentional unauthorized sale of drugs has been enacted in order to prevent harm to the general population. See Matter of Y-, 2 I&N Dec. at 603 (“Because so many persons become addicts, most of the States, if not all of them, have enacted laws restricting the right to dispense or prescribe such drugs to registered pharmacists and physicians for medicinal purposes only and inflicting very severe penalties for their violation.“); cf. Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA 2007) (holding that trafficking in counterfeit goods or services in violation of
The respondent‘s argument that his offense is not a crime involving moral turpitude because it has no Federal analogue is also misplaced. It is not necessary to compare a Federal statute to the respondent‘s statute of conviction because the Federal controlled substances schedules and statutes are not controlling for purposes of determining whether a crime involves moral turpitude. It is the respondent‘s act of attempting to sell a controlled substance that is morally turpitudinous, not the specific drug involved. See Matter of Khourn, 21 I&N Dec. at 1047 (stating that “an evil intent is inherent in the crime of distribution of a controlled substance“). We therefore affirm
We also affirm the Immigration Judge‘s denial of the respondent‘s application for cancellation of removal for lawful permanent residents under
III. FINALITY OF A CONVICTION
Thе respondent also seeks a remand based on new evidence that he timely appealed his 2016 State drug conviction after the New York court granted him permission to file a late-reinstated appeal. He argues that because his conviction is now on direct appeal, it is not sufficiently final for immigration purposes, so it cannot serve as a predicate for his removal or disqualify him from relief under
A. Statutory Text
We begin our analysis with the words of the statute. The term “conviction” was statutorily defined in the Act for the first time with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA“).
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.
B. History of Section 101(a)(48)(A) of the Act
Prior to the passage of the IIRIRA, it was well established that a conviction did not attain finality for immigration purposes and therefore that the civil consequence of deportation did not attach until the alien had either exhausted or waived the right to direct appellate review. See, e.g., White v. INS, 17 F.3d 475, 479 (1st Cir. 1994); Martinez-Montoya v. INS, 904 F.2d 1018, 1025 (5th Cir. 1990); Morales-Alvarado v. INS, 655 F.2d 172, 174–75 (9th Cir. 1981); Marino v. INS, 537 F.2d 686, 691–92 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975); Will v. INS, 447 F.2d 529, 532–33 (7th Cir. 1971); Matter of Thomas, 21 I&N Dec. 20, 21 n.1 (BIA 1995); Matter of Polanco, 20 I&N Dec. 894, 895–96 (BIA 1994); Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988). This principle was derived from the Supreme Court‘s decision in Pino v. Landon, 349 U.S. 901, 901 (1955) (per curiam), in which the Court reversed the decision of the lower court based on insufficient evidence in the record “that the conviction has attained such finality as to support an order of deportation within the contemplation of [former section] 241 of the Immigration and Nationality Act, 8 U.S.C.A. § 1251 [(1952)].”
Our decision in Matter of Ozkok, 19 I&N Dec. at 551–52, which predated the IIRIRA, set forth the prevailing standard to evaluate whether a conviction exists for immigration purposes. Under Ozkok, we considered that a person was convicted if “the court has adjudicated him guilty or has entered a formal judgment of guilt.” Id. at 551. However, where adjudication of guilt was withheld, we required all of the follоwing elements to be present:
- 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;
- the judge has ordered some form of punishment, penalty, or restraint on the person‘s liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver‘s license, deprivation of nonessential activities or privileges, or community service); and
- 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 the person‘s guilt or innocence of the original charge.
Congress’ clear reliance on Ozkok in defining the term “conviction” indicates that it was fully aware of the precedent decisions of the Supreme Court, the Federal circuit courts, and the Board concerning the finality requirement. See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]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.“). Its nearly verbatim adoption of the Ozkok language “is akin to reenacting a portion of an existing statute while intending to preserve its attendant administrative and judicial interpretations.” Matter of Cardenas Abreu, 24 I&N Dec. 795, 814 (BIA 2009) (en banc) (Greer, dissenting), vacated, 378 F. App‘x 59, 62 (2d Cir. 2010); see also Alaska v. Native Vill. of Venetie Tribal Gov‘t, 522 U.S. 520, 530–31 (1998) (indicating that Congress implicitly intends to preserve the definition of terms when it аdopts language verbatim from prior case law defining the same terms). See generally Williams v. Taylor, 529 U.S. 420, 434 (2000) (“When the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court‘s own processes to give the words the same meaning in the absence of specific direction to the contrary.“). However, we must consider the language of the statute to determine whether it is plain and unambiguous with respect to whether all direct appeals as of right must have been exhausted or waived for a conviction to be sufficiently “final” for immigration purposes. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
C. Ambiguity of the Statute
“In ascertaining the plain meaning of the statute, [we] must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In order to determine Congress’ intent, we may consider the overall “object and policy” of the law and examine the legislative history. Massachusetts v. Morash, 490 U.S. 107, 115 (1989); see also Matter of Punu, 22 I&N Dec. 224, 227 (BIA 1998).
When Congress enacted the current definition of a “conviction” at
A proper regard for fundamental fairness leads us to expect that Congress would be clear if its intent was to eliminate the long-standing finality requirement regarding the right to appeal a conviction. Cf. Alim v. Gonzales, 446 F.3d 1239, 1249 (11th Cir. 2006) (stating that deeming a conviction to be final for immigration purposes after it was “vacated on appeal (with a judgment of acquittal entered) due to insufficient evidence” is “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“). Because it has been silent with respect to the finality requirement, the resulting ambiguity in
As the dissent notes, Congress preserved the finality requirement elsewhere in the Act. See, e.g.,
Thus, we do not discern any affirmative congressional intent from the fact that Congress did not add the word “final” when it adopted the Ozkok language verbatim in its new definition of a “conviction,” while preserving the language of existing provisions that referenced a “final” conviction. This situation is distinct from other circumstances where Congress has included language in one section of a statute and omitted it elsewhere. We therefore do not find any applicability of the “canon of statutory construction that ‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Matter of M-H-Z-, 26 I&N Dec. 757, 761 (BIA 2016) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)).
Moreover, although the statute is also silent with respect to convictions that have been vacated on the merits, we have consistently declined to strictly interpret the language of
D. Decisions of the Circuit Courts
The ambiguity in the statutory definition is highlighted by the circuit courts’ disparate interpretations of
Other circuits have resolved this issue in favor of the continued vitality of the finality requirement. In the clearest statement on the question of finality since our publication of Matter of Cardenas Abreu, the Third Circuit concluded that an alien‘s conviction is not sufficiently final for immigration purposes until the right to direct appellate review has been exhausted or waived. Orabi v. U.S. Att‘y Gen., 738 F.3d 535, 541–42 (3d Cir. 2014) (“[W]e hold that the IIRIRA‘s elimination of the finality requirement in the case of deferred adjudications does not disturb the longstanding finality rule for direct appeals recognized in Ozkok . . . .“). This is the only circuit precedent to addrеss the finality question in the context of a direct appeal as a matter of right in immigration proceedings.
In the remaining circuits that have addressed the question of finality, the issue was not presented in the context of a direct appeal pending from a trial court‘s finding of guilt. See Planes v. Holder, 652 F.3d 991, 994–97 (9th Cir. 2011) (addressing a situation where the alien‘s appeal was from the sentence imposed following his guilty plea, rather than from his conviction); Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290–291 (5th Cir. 2007) (noting that the alien‘s conviction had been affirmed while on petition for review, but stating that even though his appeal was pending at the time of the Board‘s decision, finality is no longer required); United States v. Saenz-Gomez, 472 F.3d 791, 793–94 (10th Cir. 2007) (holding, in the context of a sentence enhancement for illegal reentry, that where the alien‘s appeal from his aggravated felony conviction was still pending at the time of his removal—but was later dismissed—it was final when he was removed); Montenegro v. Ashcroft, 355 F.3d 1035, 1037–38 (7th Cir. 2004) (per curiam) (holding that the alien‘s conviction was final at the time he was ordered removed, despite the fact that he then had two petitions pending—a writ of certiorari and an appeal from the denial of his post-conviction petition—both of which were later denied).
However, as we noted in Matter of Marquez Conde, 27 I&N Dec. at 253, of the circuit courts that have addressed whether
Emphasizing Congress’ silence on the effect to be given a conviction that has been vacated on the merits, the Eleventh Circuit found our interpretation of the statute in Pickering to be reasonable. Alim, 446 F.3d at 1247–50. Congress has similarly been silent with regard to the effect of a direct appeal on an alien‘s conviction. See generally Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222 (2009) (“It is eminently reasonable to conclude that [a statute‘s] silence is meant to convey nothing more than a refusal to tie the agency‘s hands . . . .“); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (stating that where a “statute is silent or ambiguous with respect to the specific issue,” an agency‘s interpretation should be givеn deference if it is based on a permissible construction of the statute).
In view of this congressional silence and the fact that “the circuit court decisions . . . offer conflicting statements” regarding the finality requirement, we have a “responsibility to interpret the Act.” Matter of Cardenas Abreu, 24 I&N Dec. at 820 (Greer, dissenting). The language of
We have examined the language of
In holding that the finality requirement continues to apply after the enactment of the IIRIRA, we emphasize that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.11 Consequently, absent proof of a waiver of appeal rights, a conviction does not achieve finality for immigration purposes until the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction. However, once the DHS has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes.
To rebut that presumption, a respondent must come forward with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court.12 He or she must also present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. See Matter of Marquez Conde, 27 I&N Dec. at 255 (reaffirming Matter of Pickering and reiterating that “convictions that have been vacated based on procedural and substantive defects in the underlying criminal proceeding [are] no longer valid for immigration purposes“); see also Matter of Rodriguez-Ruiz, 22 I&N Dec. at 1379–80 (giving effect to the alien‘s vacated conviction where there was evidence by way of a court order that the conviction was vacated on the legal merits of the underlying criminal proceedings).
In this case, the respondent submitted evidence indicating that he filed a motion for an extension of the appeal deadline and that the motion was granted and the appeal was permitted by the New York appellate court.14 Under these circumstances, we will remand this case to the Immigration Judge to consider the status of the pending appeal and its basis and to determine whether a continuance may be appropriate. See Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018). In this regard, the respondent and the DHS should be given an opportunity to present any additional documentary and testimonial evidence they wish to offer in assisting the Immigration Judge.
Accordingly, the appeal from the Immigration Judge‘s determination that the respondent is removable under
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
I agree with the majority that, prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA“), the Board and Federal courts had long held that a conviction only became final for immigration purposes once direct appellate review had been exhausted or waived. See Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988); see also Matter of Polanco, 20 I&N Dec. 894, 895–96 (BIA 1994) (collecting cases). However, as part of thе IIRIRA, Congress for the first time created a statutory definition of the term “conviction.” IIRIRA § 322(a)(1), 110 Stat. at 3009-628 to 3009-629. Specifically, the Act provides that the “term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.”
We have a duty to follow the plain and unambiguous language of the statute, and
In addition, the use of the term “conviction” in itself does not implicitly denote the existence of such a requirement. See Deal v. United States, 508 U.S. 129, 131 (1993) (“[T]he word ‘conviction’ can mean either the finding of guilt or the entry of a final judgment on that finding.“). Thus, in looking to the plain language of the statute, there is simply no requirement that all appеals must be exhausted or waived before a conviction is final for immigration purposes. See Planes v. Holder, 652 F.3d 991, 996–97 (9th Cir. 2011).3
The majority states that Congress did not intend to alter the judicial and administrative interpretations regarding the finality of a conviction when it adopted a definition of a “conviction” for the first time in the Act. However, the plain language of
The majority cites to Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), to support its view that this rule should be applied to judicial interpretations when Congress adopts a definition for the first time. However, that case involved a situation far different from the one before us. The legislative history of the statute at issue there explicitly stated that Congress intended to adopt the Suрreme Court‘s definition of the term “Indian country” verbatim. Id. at 530 (stating that the statute‘s
In our case, the pertinent legislative history is silent regarding finality. Furthermore, Congress did not adopt those prior interpretations verbatim. When Congress defined the term “conviction” for the first time in the Act, it significantly modified the Board‘s definition in Matter of Ozkok, 19 I&N Dec. at 551–52, rejecting that case‘s approach to deferred adjudications. See Matter of Cardenas Abreu, 24 I&N Dec. 795, 805 (BIA 2009) (en banc) (Pauley, concurring), vacated, 378 F. App‘x 59 (2d Cir. 2010). We cannot assume that Congress deferred to our interpretation when it enacted
Moreover, looking to the “broader context of the statute as a whole,” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997), other sections of the Act indicate that the majority‘s approach is not the correct interpretation. Although Congress did not use the term “final” in
The inclusion of the term “final” in the above provisions, and its exclusion from
The majority effectively concedes that its result is not based on the plain language of the statute. Rather, it regards congressional silence, legislative history and prior judicial interpretations as providing support for its finding that the statute is ambiguous. However, based on long-standing principles of statutory construction, we have a duty to first assess whether the language of the statute is clear and unambiguous, and if it is, we must follow that language as long as it would not lead to an absurd or bizarre result. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); Demarest v. Manspeaker, 498 U.S. 184, 191 (1991).
In this case, no absurd results would ensue from applying the plain language of this provision. The respondent, who was detained below and remains detained on appeal, was ordered removed, based in part on a conviction that was clearly final during his removal hearing. While his case was pending before us on appeal, he filed a motion for a late-reinstated appeal in State court, which was granted. Also, contrary to the majority‘s implication, no fundamental unfairness would ensue. If the respondent‘s conviction is reversed by the State court, it will no longer be valid for immigration purposes. See, e.g., Matter of Marquez Conde, 27 I&N Dec. 251, 255 (BIA 2018) (holding that “convictions that have been vacated based on procedural and substantive defects in the underlying criminal proceeding [are] no longer valid for immigration purposеs“). Thus, any unfairness that may ensue from ordering the respondent removed based on his conviction now could be remedied if he successfully overturns his conviction before the State court. This is one reason why the Department of Homeland Security (“DHS“) might choose for policy or prudential reasons not to proceed with removal proceedings until direct appeals have been exhausted.
The approach that I would take is consistent with the clear majority of circuit courts that have addressed finality in the immigration context. Several courts have expressly held that the judicially created finality requirement has been superseded by the IIRIRA, based on the plain language of the Act, and that a conviction exists for immigration purposes, even if a direct appeal is pending in criminal court. See Planes, 652 F.3d at 994–96; United States v. Saenz-Gomez, 472 F.3d 791, 794 (10th Cir. 2007) (holding that “the literal language of [section 101(a)(48)(A)] controls” the meaning of “conviction” and declining to read a finality requirement into that provision “[b]ecause the plain language of [the statute] is clear and does not lead to an irrational result“); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per
The majority attempts to distinguish this authority by stating that these decisions could have been decided on narrower grounds. However, circuit courts, as well as the Board, render published decisions where the holding is arguably broader than necessary to resolve the case at hand, and even where that is true, it does not turn a holding into dicta. Moreover, the distinctions cited by the majority have no bearing on the express holdings in those decisions that the finality requirement did not survive the enactment of the IIRIRA and that a conviction exists for immigration purposes, even if it is pending on direct appeal.
Some circuits have indicated in dicta that the finality rule did not survive the enactment of the IIRIRA. See Moosa v. INS, 171 F.3d 994, 1009 (5th Cir. 1999) (“There is no indication that the finality requirement imposed . . . prior to 1996 . . . survives the new definition of ‘conviction’ found in IIRIRA . . . .“); see also Griffiths v. INS, 243 F.3d 45, 49–51 (1st Cir. 2001) (reserving the question but citing Moosa approvingly). Most relevant here, the United States Court of Appeals for the Second Circuit, in whose jurisdiction this case arises, has stated in dicta that the IIRIRA “eliminate[d] the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute.” Puello v. Bureau of Citizen. & Immigr. Servs., 511 F.3d 324, 332 (2d Cir. 2007). But see Walcott v. Chertoff, 517 F.3d 149, 154 (2d Cir. 2008) (accepting the DHS‘s argument that an alien‘s “March 1996 conviction was not deemed final for immigration purposes until July 1, 1998, when direct appellate review of it was exhausted“).8 The majority attempts to distinguish these cases, but the distinctions it draws are irrelevant to how these courts treated the finality issue.9 The majority‘s creative discussion of the circuit court decisions that have addressed the
The only circuit that has held that the finality requirement survived the enactment of the IIRIRA is the Third Circuit. See Orabi v. U.S. Att‘y Gen., 738 F.3d 535, 540–41 (3d Cir. 2014). There the court relied primarily on legislative history discussing Congress’ attempt to modify the Board‘s approach to deferred adjudications. However, as noted, this lеgislative history is silent with respect to the issue before us. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 862 (1984) (declining to find that legislative history illuminates congressional intent where that history is either silent or ambiguous on the issue); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature‘s understanding of otherwise ambiguous terms.“). For this reason, the legislative history does not resolve whether
Based on the plain language of the Act and the clear weight of authority in the circuit courts, I would conclude that “the first definition of ‘conviction’ in § [101](a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.” Planes, 652 F.3d at 996. The majority errs by invoking congressional silence to convert the otherwise plain language at issue here into statutory ambiguity, thereby giving us license to resolve the ambiguity in the manner that we think is best. “Regardless of our view on the wisdom or efficacy of Congress‘s policy choices, we are not free to read in additiоnal elements where the legislature has declined to include them.” Id. (citing Jones v. Bock, 549 U.S. 199, 216–17 (2007)).
I therefore respectfully dissent from the majority‘s decision to remand this case for further proceedings. I would deny the respondent‘s motion to remand because the new evidence does not indicate that his conviction has been overturned or vacated, and he remains ineligible for relief under