Lead Opinion
OPINION OF THE COURT
Pеtitioner, Omar Abd Gomaa Orabi, appeals from an order of removability, entered by the Honorable Walter Durling, U.S. Immigration Judge (“IJ”), on May 22, 2012, and approved by the Board of Immigration Appeals (“BIA”) on September 18, 2012.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). For the reasons that follow, we will reverse the decision of the IJ and BIA.
I
Orabi, an Egyptian citizen, was admitted to the United States in 1990 and became a lawful permanent resident without conditions in 1996. In 2010, he was convicted in the U.S. District Court for the Southern District of New York (“S.D.N.Y.”) for the offenses of Conspiracy to Commit Fraud in connection with Access Devices, Possession of Counterfeit Access Deviсes, Possession of Counterfeit and Forged Checks, and Aggravated Identity theft. He was sentenced to a term of imprisonment of 70 months. In November 2011, the District Court amended its judgment and recalculated Orabi’s sentence; however, Orabi was still sentenced to a term of 70 months. He appealed that order to the Second Circuit in December 2011, and that appeal remains pending. See United States v. Ibrahim, (Orabi), C.A. No. 12-0044 (2d Cir., filed Dec. 29, 2011).
In February 2012, the Department of Homeland Security (“DHS”) initiated removal proceedings against Orabi. Among other things, DHS charged that Orabi was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his S.D.N.Y. conviction was for an aggravated felony. See 8 U.S.C. § 1101(a)(43)(R). Orabi notified DHS and the Immigration Cоurt that he was appealing the S.D.N.Y. conviction, and DHS moved to withdraw the aggravated felony removal charge. At a subsequent removal hearing, Orabi appeared pro se and took part in an ambiguous exchange with the IJ regarding the status of the Second Circuit appeal. At the IJ’s request, Orabi also agreed to provide a letter that ostensibly withdrew his Second Circuit appeal. DHS therefore moved to reinstate the removal charge, and the IJ sustained it.
The appellate record of the Second Circuit reveals neither the letter, which ostensibly withdrew Orabi’s appeal, nor any motion by Orabi to withdraw the aрpeal.
We make reference to the record of the Second Circuit because it is that record that is controlling regarding the
While Orabi argued on appeal to the BIA that his convictions were not final for immigration removаl and that the IJ’s removal order was void, the BIA nevertheless held that his conviction remained final for immigration purposes. The BIA stated:
[UJnder section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A), the térm “conviction” means “a formal judgment of guilt of the alien entered by a court.” Whether such judgment may be subject to direct appeal is immaterial to the attachment of immigration consequences: See, e.g., Planes v. Holder,686 F.3d 1033 (9th Cir.2012)2 .... The Immigration Judge therefore properly considered the immigration consequences of [Orabi’s] conviction.
Accordingly, the BIA dismissed Orabi’s appeal.
On August 12, 2013, the Government filed a letter brief stating that: (1) Orabi had been deported to Egypt; (2) despite Orabi’s deportation, we retained jurisdiction; and (3) the Government was prepаred to return Orabi to the United States pursuant to Immigration Control Enforcement (“ICE”) regulations. See ICE Policy, § 11061.1(2) (“Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. [C]ourt of [A]ppeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien’s return to the United States if either the court’s decision restores the alien to lawful permanent resident (LPR) status, or the alien’s presence is necessary for continued administrative removal proceedings.”); see also 8 U.S.C. § 1229a(b)(2)(A) (requiring an immigrant’s presence at a removal hearing absent the parties’ consent or a teleрhonic or video conference).
Orabi now petitions pro se before us for review. Whether we have jurisdiction is
II
Although 8 U.S.C. § 1252(a)(2)(C) provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [certain] criminal offense[s],” 8 U.S.C. § 1252(a)(2)(D) grants us jurisdiction to review “constitutional claims or questions of law raised upon a petition for review” of final removal orders. Paredes v. Att’y Gen.,
III
The Government offers three arguments in support of its position that Orabi’s conviction was final for immigration purposes: (1) the record supports the Agency’s finding that Orabi withdrew his appeal to the Second Circuit; (2) Orabi’s conviction was final regardless of whether his appeal was withdrawn because his аppeal only challenged his sentence and not the finding of his guilt; and (3) this Court should adopt the position of its sister Circuits and the BIA that a conviction is final for immigration purposes regardless of whether a direct appeal is pending.
A
We have already discussed supra why the Government’s position as to the withdrawal of Orabi’s appeal cannot prevail. Based on.the Second Circuit record, Orabi had — and has — a pending appeal before that Court. See Fiadjoe v. Att’y Gen.,
B
The Government’s argument regarding the sentenee/conviction distinction and the contents of Orabi’s Second Circuit appeal is similarly unavailing. Because the BIA did not reach its decision based on this ground, we may not affirm the judgment on this ground. See Sec. & Exch. Comm’n v. Chenery Corp.,
Thus, we turn to the Government’s concluding argument concerning the finality for immigration purposes of the Second Circuit appeal from Orabi’s criminal judgment of conviction.
Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), it was “well established 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.” In re Ozkok, 19 I. & N. Dec. 546, 552 n. 7 (BIA 1988) (citing Marino v. INS,
The IIRIRA defined the term “conviction,” for purposes of immigration removal as:
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.
8 U.S.C. § 1101(a)(48)(A).
Thus, the IIRIRA’s amendment, which focuses solely on the term “conviction,” sought to broaden the scope of that term, but in so doing, it did not refer to, amend, change, or even mention doing away with the need for appeal to acquire finality of judgment. Understandably, Section 322, as recalled in the Conference Committee Report of the House of Representatives, addressed only adjudications that were “deferred” (a product of numerous state procedures) and instances in which the subject alien has violated a term or condition of probation. See H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess.1996,
Consequently, following IIRIRA’s passage, this Court’s precedent governing the finality requirement in immigration removal cases remained undisturbed. In Paredes v. Att’y Gen., decided twelve years later than the amendment to the IIRIRA, we understanding^ subscribed to the position that until such time as a direct appeal from a conviction that authorizes removal has been resolved, the judgment is not final for immigration removal purposes.
Other Courts, however, have held that a conviction is final for immigration purposes notwithstanding any pending appeals, without giving effect to the purpose of the IIRIRA. See, e.g., Planes,
We do not agree that the IIRIRA eliminated a direct appeal from the finality rule in its definition of conviction. Hence, we do not agree with those Courts that have
In Ozkok, the BIA held that “[wjhere adjudication of guilt has been withheld, ... further examination of the specific procedure used and the state authority under which the court acted will be necessary.” 19 I. & N.-Dec. at 551 (emphasis added). The BIA went on to identify three elements that established a “conviction” in such settings:
(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 (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 (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 the person’s guilt or innocence of the original charge.
Id. at 551-52. That is, “for immigration purposes, a deferred adjudication [as distinct from a pending appeal] would be considered a conviction if three elements were met, the third of which consisted of a finality requirement.” Planes,
While Congress “adopted almost verbatim” this definition of “conviction” in the IIRIRA, id. at 1039, the statute explicitly eliminated the finality requirement fоr deferred adjudications. See 8 U.S.C. § 1101(a)(48)(A); see also H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess.1996,
Nothing in IIRIRA or its legislative history suggests that Congress intended the phrase “formal judgment of guilt” to be interpreted any differently from how it always had been interpreted prior to the enactment of the statute.... The elimination of the finality provision for deferred adjudications, along with the failure to make any changе in the language regarding direct appeals as of right ... demonstrates Congress’ intent to retain the finality rule for the latter category of appeals.
Given that Orabi’s appeal was one of right and that no deferred adjudication is
Further, Ozkok, which states 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,” 19 I. & N. Dec. at 552 n. 7, is approvingly cited in Paredes as pertaining to a direct appeal as distinguished from a collateral appeal of a judgment,
Accordingly, consistent with other Circuits, we do not retain jurisdiction for immigration purposes in our Court when a collateral appeal is taken from a criminаl judgment adverse to a petitioner because it is not a direct appeal. Id. (citing United States v. Garcia-Echaverria,
Here, however, unlike the collateral challenge in Paredes, the criminal appeal awaiting resolution by Orabi is a direct appeal. The IIRIRA amendment that speaks only to the term “conviction”
Further, despite the Government’s claims to the contrary, we do not read Planes as providing a consensus as to the correct interpretation of the IIRIRA’s “finality rule.” As the Planes dissent correctly notes, “each of the cases cited by the panel is distinguishable, and only the one decided by the Tenth Circuit [United States v. Saenz-Gomez,
We are therefore convinced that the principle announced and held in Ozkok — that “a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has beеn exhausted or waived”
The judgment of the BIA will therefore be reversed, with instructions that the Government, pursuant to its August 12, 2013 letter, be directed to return Orabi to the United States in accordance with the ICE regulations cited.
Notes
. We may take judicial notice of the contents of another Court’s docket. See, e.g., Mar. Elec. Co., Inc. v. United Jersey Bank,
. The citation provided by the BIA for Planes v. Holder,
. Orabi also submitted to the BIA a copy of a Second Circuit order dated July 16, 2012 granting his motion for an extension of time in his criminal appeal. The BIA noted that the order constituted new evidence but held that the pendency of a criminal appeal was immaterial to Orabi's immigration proceedings.
. As we stated, the Government conceded in its August 12, 2013 letter brief that despite Orabi’s deportation, we retain jurisdiction.
. 8 U.S.C. § 1101(a)(48)(A).
. 19 1. &N. Dec. at 552 n. 7.
Dissenting Opinion
dissenting:
I agree with the majority that we have jurisdiction to consider Orabi’s petition for review and that his appeal from a conviction on an aggravated felony is still pending before the Second Circuit. I also agree that, prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. 104-208, 110 Stat. 3009 (1996), the pen-dency of Orabi’s direct appeal would have meant that his conviction was not final for immigration purposes and could not have been considered as a basis for removal. I part company with 'the majority when it concludes that the pendency of Orabi’s direct appeal means that the conviction cannot serve as a basis for removal following enactment of the IIRIRA. That statute for the first time defined the term “conviction” for purposes of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1101(a)(48)(A) (defining the term “conviction”). Because this court did not address in Paredes v. Attorney General,
I.
As the majority correctly notes, prior to the enactment of the IIRIRA, the term conviction was not defined in the immigration laws. Under pre-IIRIRA case law, a conviction could not serve as the basis for removal until it had “attained a substantial degree of finality. Such finality [did] not occur unless and until direct appellate review of the conviction ... ha[d] been exhausted or waived.” Marino v. INS,
As the states adopted various criminal procedures designed to “amelior[ate] the consequences of a conviction,” the finality requirement proved increasingly difficult to apply in the immigration context.
It was against this backdrop that Congress enacted the IIRIRA in 1996. The Act defined for the first time the term “conviction” for immigration purposes:
The term “conviction” means, with respect to an alien, [ (1) ] a formal judgment of guilt оf the alien entered by a court or, [ (2) ] 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.
8 U.S.C. § 1101(a)(48)(A).
This new statutory definition, like the Ozkok decision, established the standard applicable to two categories of convictions:
Our task in interpreting a statute “is to discern legislative intent.” Morgan v. Gay,
Scrutiny of the IIRIRA definition of “conviction” reveals no language requiring the exhaustion or waiver of a direct appeal before an alien’s conviction may serve as a predicate for removal. Rather, the definition requires only that there has been a “formal judgment of guilt of the alien entered by a court.” 8 U.S.C. § 1101(a)(48)(A). As to deferred adjudications, the definition demands a record that has expressly or implicitly established the alien’s guilt, accompanied by the imposition of some restraint on the alien’s liberty. Id. In the absence of statutory language specifying that a “conviction” under the IIRIRA requires the exhaustion or waiver of the right to appeal, I conclude that the pendency of a direct appeal does not preclude an аlien’s conviction from serving as the basis for removal. •
Nor does Lorillard v. Pons,
Prior to the IIRIRA, Ozkok established the standard for formal and deferred adjudications. Both of these categories required finality before a conviction could be the basis for removal of an alien. Finality was required for formal adjudications by virtue of the finality requirement highlighted in the footnote in Ozkok, 19 I. & N. Dec. at 552 n. 7. Finality for deferred adjudications was necessary under the third prong set forth in the Ozkok standard. Id. at 552.
In fashioning the definition of the term “conviction” for immigration purposes, Congress embraced to a great extent the Ozkok definition for conviction. Yet it stopped short of adopting the Ozkok standard in its entirety. Instead, in setting out the definition of conviction for the two categories, Congress eliminated the third prong of the Ozkok standard for deferred adjudications. That third prong had a finality requirement. Id. (specifying that the deferred adjudication qualified as a conviction if it was “without availability of further proceedings regarding the person’s guilt or innocence of the original charge”).
By choosing to eliminate the finality requirement for deferred adjudications in
Indeed, if Congress had intended to require a finality component in the first statutory definition of the term “conviction,” it could have easily included such a requirement. Congress knows well, and knew at the time, how to refer to final convictions because it did so in other provisions in the INA concerning removal. See 8 U.S.C. §§ 1227(a)(2)(D) (including among the class of criminal offenses making an alien deportable, certain miscellaneous offenses fоr which an alien “has been convicted (the judgment on such conviction becoming final)”); 1228(c)(3)(A)(iii) (providing that before a district court may enter a judicial order of removal at the time of sentencing against an alien who is deportable, there must be a valid waiver of the right to appeal, the expiration of the period to file a petition for review, or the final dismissal of an appeal from such a conviction); and 1231(a)(4)(B)(i) & (ii) (authorizing Attorney General to remove an alien before he has completed a sentence of imprisonment if the confinement of the alien is “pursuant to a final conviction for a nonviolent offense”) (emphasis added). I rely on the well-settled proposition “that where 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 purposefully in the disparate inclusion or exclusion.” Duncan v. Walker,
II.
The majority is of the view that Paredes v. Attorney General,
To be sure, as the majority acknowledges, there is no consensus among the courts of appeals as to whether there is a finality requirement post-IIRIRA for a conviction to constitute a basis for removal. Some of our sister courts of appeals have concluded that there is no finality component in the new statutory definition of “conviction.” Planes v. Holder,
Yet there are decisions which have rejected the contention that the finality requirement may no longer be a factor in deciding whether there is a basis for removal. See Abreu v. Holder,
“Our task is to apply the text, not to improve on it.” Pavelic & LeFlore v. Marvel Entm’t Grp.,
I respectfully dissent.
. The BIA explained in In re Ozkok that criminal "procedures var[ied] from state to state and include[d] provisions for annulling or setting aside the conviction, permitting withdrawal of the plea, sealing the records after completion of a sentence or probation, and deferring'adjudication of guilt with dismissal of proceedings following a probationary period.” 19 I. & N. Dec. 546, 550 (1988). It further noted that thesе "ameliorative provisions” also varied in their applicability, with some being available to certain categories of offenders, such as youthful or first offenders. Id.
. Ozkok declared that
As in the past, we shall consider a person convicted if the court has adjudicated him guilty or has entered a formal judgment of guilt....
Where adjudication of guilt has been withheld, however, further examination of the specific procedure used and the state authority under which the court acted will be necessary. As a general rule, a conviction will be found for immigration purposes where all of the following elements are present:
(1) a judge or jury has fоund 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 (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
(3) a judgment or adjudication of guilt may be entered if the рerson 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.
19 I. & N. Dec. at 551-52.
. The majority relies on legislative history. Because the plain text of the statutory definition of "conviction” makes clear that exhaustion or waiver of the right to a direct appeal is not required, I do not address that aspect of the majority’s reasoning. See Bruesewitz v. Wyeth Inc.,