Matter of J.M. ACOSTA, 27 I&N Dec. 420 (BIA 2018)
BIA HEADNOTE:
(1) 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.
(2) 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.
(3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.
PANEL: BIA APPELLATE IMMIGRATION JUDGES KELLY, GREER, AND MALPHRUS
OPINION BY: JUDGE EDWARD F. KELLY
CONCURRING & DISSENTING OPINION: JUDGE GARRY D. MALPHRUS
KEY QUOTE FROM JUDGE KELLY’S MAJORITY OPINION:
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 (reaffirmingMatter 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).
Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of the conviction will not be given effect to eliminate the finality of the conviction. Such appeals include those that relate only to the alien’s sentence or that seek to reduce the charges, to ameliorate the conviction for rehabilitative purposes, or to alleviate immigration hardships, and any other appeals that do not challenge the merits of the conviction. See Matter of Roldan, 22 I&N Dec. 512, 521–24 (BIA 1999) (holding that under the statutory definition of a “conviction” in section 101(a)(48)(A) of the Act, no effect is to be given in immigration proceedings to a State action that purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a State rehabilitative statute); see also Matter of Pickering, 23 I&N Dec. at 624–25 (holding that a conviction set aside for reasons solely related to post-conviction events such as rehabilitation or immigration hardships will remain a conviction for immigration purposes).13
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.14Under 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 section 237(a)(2)(A)(i) of the Act and from his denial of the respondent’s application for cancellation of removal under section 240A(a) of the Act will be dismissed. The respondent’s motion to remand based on new evidence will be granted.
[Text of Footnotes Omitted]
KEY QUOTE FROM JUDGE MALPHRUS’S CONCURRING & DISSENTING OPINION:
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 additional 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 former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
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This is important guidance from the BIA on a recurring question before U.S. Immigration Judges. Congrats to Judge Kelly on what, by my calculation, is his first published precedent opinion. And, he and Judge Anne Greer appear to have gotten it right. I don’t understand Judge Malphrus’s contention (in a part of his opinion not quoted above) that an individual who is actually removed based on a conviction later vacated on appeal hasn’t suffered any unfairness or irreparable harm.
PWS
08-30-18