On August 29, 2018, the Board of Immigration Appeals (BIA or Board) denied an appeal and remanded the record to the Immigration Judge (IJ) in a case where the respondent, admitted to the U.S. as a lawful permanent resident in 1992, had pled guilty to attempted criminal sale of a controlled substance in the third degree in 1993 and to criminal possession of a controlled substance (narcotic) in the third degree in 2016. Placed into removal proceedings, respondent was charged under INA §§237(a)(2)(A)(i) (crime involving moral turpitude), 237(a)(2)(A)(ii) (aggravated felony conviction), and 237(A)(2)(B)(i) (controlled substance violation); he moved to terminate, applied for cancellation of removal under §240A(a), and for a waiver under former §212(c). The IJ denied the motion and both applications and ordered respondent removed. He appealed and filed a motion to remand; DHS opposed both.
The IJ had found respondent removal per 237(a)(2)(a)(i) for his 1993 conviction. Respondent’s appeal claimed the offense was not for a crime involving moral turpitude (CIMT), while his motion to remand was supported by evidence that a state appellate court had granted a motion for leave to file a late appeal of his 2016 conviction, deeming his notice of appeal timely. His somewhat convoluted argument in the motion was that, because a direct appeal of the 2016 conviction was pending, it lacked the requisite finality to qualify as a “conviction” per INA §101(a)(48)(A) and therefore could not support the controlled substance charge. As a result, he contended that he was eligible under §212(c) for a waiver of removability covering his 1993 CIMT conviction.
In determining whether the state drug offense was a CIMT, the BIA initially noted that it employed the categorical approach and cited the familiar standard that a CIMT requires “two essential elements” – reprehensible conduct and a culpable mental state requiring deliberation or consciousness. Because previous Board precedent had held that the Federal offense of possession of a controlled substance with the intent to distribute is a CIMT and the minimum conduct likely to be prosecuted under the New York criminal statute “involves inherently reprehensible conduct committed with a mental state of knowledge or intent,” the BIA concluded respondent’s conviction was for a CIMT, thus affirming the IJ’s determination of removability under §237(a)(2)(a)(i), as well as his denial of the cancellation application, as respondent could not establish continuous residence in the U.S. for seven years after being admitted in any status.
Regarding the finality of respondent’s conviction, the BIA began its analysis with the statutory text, covered the history of §101(a)(48)(A) and the definition of “conviction” under Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988),before discussing the statute’s ambiguity. That there is “no mention of finality in the definition of ‘conviction’ in section 101(a)(48)(A)” created the ambiguity, stated the opinion. Congress would have been clear if its intent “was to eliminate the long-standing finality requirement regarding the right to appeal a conviction,” concluded the Board, and its silence in this respect suggested Congress “intended to retain this well-established principle.” The BIA then looked at Federal courts of appeals decisions, noting that of those cases that have addressed whether §101(a)(48)(A) permits an exception for conviction vacated on the merits, all but the Fifth Circuit have adopted the Board’s reasoning in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)(conviction stands for immigration purposes despite vacatur if it was vacated for a reason unrelated to the merits of the case). It therefore held that Congress did not intend to abandon the prior interpretation of the finality requirement in 101(a)(48)(A) and that the requirement that a conviction attain sufficient finality before immigration consequences attach had survived the enactment of the IIRIRA.
Next, in addressing the requirements for finality of a conviction, the decision emphasized the rule that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review has been exhausted or waived. However, stated the BIA, once DHS establishes that a respondent had 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. To rebut that presumption, found the Board, a respondent must come forward with evidence that an appeal has been timely filed and prove that the appeal relates to the issue of guilt or innocence or “concerns a substantive defect in the criminal proceedings.” Further, appeals that do not relate to the underlying merits of the conviction will not be given effect to eliminate its finality, e.g., cases with an appeal relating only to the sentence or that seek to reduce the charges, will still be treated as if the conviction is final. As respondent here had submitted evidence indicating he had filed a motion for an extension of the appeal deadline which had been granted, the BIA remanded to the IJ “to consider the status of the pending appeal” and determine if a continuance is warranted. Accordingly, the appeal was dismissed and the motion to remand granted.
In another lengthy concurring and dissenting opinion, Board Member Garry D. Malphrus agreed with the majority’s determination that respondent is removable under §237(a)(2)(A)(i) for his CIMT conviction, but stated he would not have remanded the case because he does not agree with the opinion’s “treatment of the finality issue,” finding that the plain language of the “conviction” definition “does not require that appeals be exhausted or waived for a conviction to be final for immigration purposes.” Stating that the plain and unambiguous language of §101(a)(48)(A) is not ambiguous, Board Member Malphrus found “no requirement that all appeals must be exhausted or waived before a conviction is final” under the INA. Standing on what it termed are “long-standing principles of statutory construction,” the dissent argued the majority approach is inconsistent with the clear majority of circuit courts to have spoken on the issue and that “[s]everal courts” have held that the judicially created finality requirement has been superseded by the IIRIRA. Matter of Acosta, 27 I&N Dec. 420 (BIA 2018).
