BIA Holds That, Because An Appeal Accepted Under New York Criminal Procedure Law §460.30 Is Classified As A Direct Appeal, A Respondent With A Pending Appeal Under This Section Does Not Have A Final Conviction For Immigration Purposes. Brathwaite v Garland, 3F. 4th 542(2nd Cir. 2021), Followed.
On October 23, 2023, the Board of Immigration Appeals (BIA or Board) granted Respondent’s motion to terminate proceedings, after a remand by the Second Circuit of Appeals so that the BIA could address the finality of Respondent’s criminal convictions under INA §101(a)(48)(A) (the definition of “conviction”) and reassess whether he is removable as charged. DHS had opposed the motion.
Respondent, a lawful permanent resident, was convicted of multiple offenses, including identity theft, larceny, and possession of stolen property in New York State. Served with an NTA, he was charged with removability under both §237(a)(A)(ii) (conviction of 2 or more crimes involving moral turpitude) and §237(a)(2)(A)(iii) (conviction of an aggravated felony). A New York court subsequently granted Respondent’s motion for leave to file a late notice of appeal under New York Criminal Procedure Law (NYCPL) §460.30 and he filed a motion to terminate, arguing his convictions were not final for immigration purposes per §101(a)(48)(A). However, the Immigration Judge (IJ) held that, because DHS established that Respondent had, in fact, been convicted of these offenses and the initial times for filing a direct appeal had passed, a presumption arose that the convictions were final under Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018) and that Respondent had not carried his burden to rebut the presumption by producing evidence that he had filed a timely appeal; the appeal had to relate to his guilt or innocence or concern a substantive defect in the criminal proceedings, per Acosta. The Board dismissed the appeal of this decision, finding that the IJ had properly applied Acosta.
The Second Circuit then granted Respondent’s petition for review, remanding the matter for further proceedings. Brathwaite v. Garland, 3 F. 4th 542 (2nd Cir. 2021). On remand, Respondent again moved to terminate, contending on appeal and in his motion that his criminal appeal “remains outstanding under New York criminal appellate process.” Thus, the legal issue here, which the BIA addressed de novo, was how to evaluate the finality of a criminal conviction under the Brathwaite opinion.
In sending the case back to the Board, the Second Circuit concluded that §101(a)(48)(A) is ambiguous regarding whether finality is required to support a charge of removability. Applying Chevron deference, the appeals court found that the BIA’s interpretation of “conviction” in Acosta was reasonable, “in that a conviction does not support removability until the right to direct appellate review has been waived or exhausted.” However, the court held that the Board’s “burden-shifting regime and evidentiary requirements,” i.e., the presumption that the convictions were final and the need for Respondent to produce proof of a timely-filed appeal, were unreasonable given the instant appellate process under the NYCPL. In practice, explained the Second Circuit, a motion for a late notice for appeal under §460.30 may be filed within 1 year and 30 days of a criminal judgment in New York and courts there treat appeals taken by timely written notice and those under NYCPL §460.30 identically. The appeals court further stated that requiring a respondent to prove that an appeal challenges a conviction on the merits at the initial stage of filing a §460.30 motion created significant practical problems, making it frequently impossible for a respondent to comply.
In beginning its analysis, the BIA noted that determining whether direct appellate review had been waived or exhausted requires an analysis of the “criminal procedures laws of the convicting state.” (A conviction under §101(a)(48)(A) did not support removability until it is final, in that the right to a direct appeal had been waived or exhausted.)
The opinion recognized DHS’ concerns about delays in the New York criminal process and how different outcomes naturally depended on the criminal procedure statutes in different states. However, the basis of the Department’s opposition was “at odds with the court’s explanation of New York’s appellate process set forth in Brathwaite.” Additionally, an NYCPL §460.30 motion for leave to file a late notice of appeal must be made with “due diligence”; a court granting such a motion, found the Board, has necessarily concluded that the respondent proceeded with due diligence, even if the motion was filed a full 1 year and 30 days after the conviction. The BIA could not substitute its judgement in that regard.
The decision further explained that multiple grounds of removability under §237 required that DHS establish that a respondent had been convicted of a crime. The INA’s definition of “conviction” requires that the right to appeal be waived or exhausted. Therefore, because a §460.30 appeal is classified under New York law as a direct appeal, Respondent did not have a final conviction for immigration purposes. This holding, emphasized the Board, did not extend to other states’ criminal procedure laws and was distinguishable from situations where finality of a conviction was not disturbed after the initial direct appeal period has expired. Nor does this decision preclude the removal of respondents whose criminal appeals remain pending but who are removable on alternative grounds. IJs may also “consider evidence regarding convictions that remain on appeal in determining eligibility for discretionary relief from removal.”
The motion to terminate was thus granted and removal proceedings were terminated without prejudice. If, however, DHS obtains evidence that Respondent’s convictions have become final, it may initiate proceeding against him based on those convictions. Matter of Brathwaite, 28 I&N Dec. 751 (BIA 2023).