BIA: Conviction is Final even though it’s on Late Appeal—But Casts Doubt on Whether Finality is Still Required

The BIA today released a split decision holding that a late appeal of a criminal conviction does not undermine the conviction’s finality.  NY Crim. Proc. § 460.30 which allows an appellate court to extend the time in which to file an appeal.  The request was opposed by the prosecutor, but the New York court nonetheless allowed the respondent to file a late appeal of his criminal conviction.

The BIA, therefore, was essentially charged with determining whether the existence of a late appeal means that the conviction is not final.  After noting that Congress first defined the term “conviction” when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Board turned to its interpretation of Congress’s intent in enacting IIRIRA: “Congress intended to prevent the immigration laws from being ‘dependent on the vagaries of State law’ when it defined the term ‘conviction’ in section 101(a)(48)(A) of the Act.”  Matter of Cardenas-Abreu, 24 I&N Dec. at 802.  Because allowing the pendency of a late appeal under New York’s deadline extension statute would “create[] significant uncertainty and delay in reaching an ultimate resolution regarding the existence of an otherwise final conviction,” the Board concluded that the respondent’s late appeal has no impact on the finality of his conviction.  Matter of Cardenas-Abreu, 24 I&N Dec. at 802.

Does INA Even Require Finality After IIRIRA?

Several members wrote separate opinions to address an outstanding question that the majority opinion explicitly avoided deciding: Does the IIRIRA definition of conviction—found at INA § 101(a)(48)(A)—require finality to serve as the basis for removal? This issue is being considered by federal courts and has enormous implications for immigrants facing removal because of criminal convictions.

For its part, the majority suggested that finality is required:

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.  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.  Matter of Cardenas-Abreu, 24 I&N Dec. at 798 (internal citations omitted).

Board Member Greer, in a lengthy dissenting opinion joined by Board Members Neal, Miller, Hess, Adkins-Blanch, and Wendtland, argued that INA § 101(a)(48)(A) requires that a conviction must be final if it is to be used to remove a non-citizen from the country.   Matter of Cardenas-Abreu, 24 I&N Dec. at 811 (Greer, dissenting).  Similarly, in a concurring opinion, Board Member Grant explained “that the ‘finality’ requirement does still apply to cases where a direct appeal is pending or direct appeal rights have not been exhausted.”  Matter of Cardenas-Abreu, 24 I&N Dec. at 802 (Grant, concurring).   

In contrast, Board Member Pauley, joined by Board Member Cole, explained at length that INA § 101(a)(48)(A) “contains no finality requirement.”  Matter of Cardenas-Abreu, 24 I&N Dec. at 810 (Pauley, concurring).