By Alex Sheppard
In a decision published Friday, April 17, 2015, the Board of Immigration Appeals (BIA) chose to follow its prior opinion in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and found that, where warranted, removal proceedings may be delayed. Matter of Montiel, 26 I&N Dec. 555 (BIA 2015). In Matter of Montiel, the BIA granted a motion to administratively close immigration proceedings because a direct appeal of the respondent’s criminal conviction remains pending in the Ninth Circuit. Id. This decision was issued despite the Ninth Circuit’s ruling that finality of a criminal conviction is not required for such a conviction to support a charge of removability. Id. at 558.
Ulices Montiel is native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on March 14, 2008. Id. at 555. On November 14, 2013, he was convicted by a jury in the United States District Court for the Southern District of California for the unlawful transportation of aliens, in violation of INA § 274(a)(1)(A)(ii). Id. On December 16, 2013, he filed a direct appeal of his criminal conviction to the United States Court of Appeals for the Ninth Circuit, which remains pending. Id. at 555-56. On June 10, 2014, in removal proceedings, the Immigration Judge held that Montiel’s conviction was for an aggravated felony, as described under INA § 101(a)(43)(N), and that Montiel was therefore subject to removal under INA § 237(a)(2)(A)(iii). Id. at 556. The Immigration Judge ruled that, despite the pendency of Montiel’s direct appeal to his criminal conviction, the conviction was final for immigration purposes. Id. Both parties then filed a joint motion with the BIA to administratively close Montiel’s immigration case during the pendency of his criminal appeal to the Ninth Circuit. Id. at 555.
In its review of the matter, the BIA relied on, inter alia, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Id. The BIA in Matter of Avetisyan ruled that all relevant factors should be considered on a case-by-case basis when determining whether administrative closure of immigration proceedings is appropriate. Id. (citing Matter of Avetisyan, 25 I&N Dec. at 695). The Board in Matter of Montiel then listed the Avetisyan factors to consider, which include (but are not limited to):
(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
Id. at 556-57 (citing Matter of Avetisyan, 21 I&N Dec. at 695). However, after listing these Avetisyan factors, the Board only provided two considerations for its determination to administratively close the proceedings: that Montiel was convicted as a result of a jury trial, and not on the basis of a guilty plea, and that his direct appeal “concerns the validity of the underlying conviction, as opposed to the sentence imposed.” Id. at 557. Whether these considerations were a product of the Avetisyan factors, and whether the Board considered any other relevant factors, the Board did not express in its opinion.
As noted in Matter of Montiel, there is currently a circuit split as to whether “the right to file a direct appeal of a criminal conviction must be exhausted or waived for the conviction to be ‘final’ under the statutory definition of a ‘conviction’ for immigration purposes.” Id. at 558 n.5 (citing Orabit v. Att’y Gen. of U.S., 738 F.3d 535, 541-42 (3d Cir. 2014)). Montiel’s case is filed in the Ninth Circuit, which has held that the statutory definition of conviction does not require “finality” for immigration purposes. Id. at 557-58 (citing Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011)). In its finding that administrative closure was appropriate, the Board in Matter of Montiel chose not to address this issue of whether a conviction must be “final” to support removability, and rather relied solely on its decision in Avetisyan to determine if administrative closure was warranted. Id. at 555 n.1.
Before 1996, “finality” for immigration purposes required that appellate review of the underlying criminal conviction be exhausted or waived. Matter of Ozkok, 19 I&N Dec. 546, 553 n.7 (BIA 1988) (superseded by statute) (“It is 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.”) However, when Congress later enacted the IIRIRA in 1996, it provided a definition of “conviction” for immigration purposes under INA § 101(a)(48)(A), which reads:
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.
This definition provided by Congress is silent as to any “finality” requirement, and accordingly circuits have split in their interpretation of whether “finality” in regard to appellate review is required. See, e.g. Planes, 652 F.3d at 996 (concluding that a “conviction” under 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,” and in so doing, joined the Second, Fifth, Seventh, and Tenth Circuits.); Orabit, 738 F.3d at 542 (“we 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 and is irrelevant to the matter before us.”)
The BIA has not yet attempted to resolve the circuit split. Although the BIA in Matter of Montiel opted to not address whether a conviction requires “finality” for immigration purposes, its decision to administratively close immigration proceedings pending direct appeal of Montiel’s conviction in the Ninth Circuit may be indicative of the direction in which it is leaning.
Alex Sheppard is a second-year law student at the University of Denver Sturm College of Law and current intern for the Meyer Law Office, P.C., in Denver. His bio can be found here: https://www.linkedin.com/in/alexandersheppard.
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