time from the immigrant defense project for the amicus i d p appears today to present argument on the conviction finality rule an issue that substantially affects the vulnerability to deportation for lawful permanent residence eligibility for relief from removal and exposure to federal criminal prosecution and sentencing and handsome and the immigration and nationality act contains a statutory term conviction codified at section eleven zero one eight forty eight a title eight that statutory term is defined hundred opinion a matter of up and a matter of the the board of immigration appeals adopted the position the position that a conviction is defined in part as a formal judgment of guilt entered entered by a court and that has t he position of the board was that that had three requirements first a finding of guilt second the imposition of a sentence and third the exhaustion or waiver of all appellate remedies and this was the exact context in which or backdrop construction reveal that the intent of congress and legislating a definition of the term conviction was to retain a finality requirement which means it has to do that if the text is ambiguous right well you've looked at all these other sources  here look to the supreme court's precedent in robinson shell to instruct us is how to how to identify ambiguity in a statute and when and how to apply the rules of statutory construction and so and what we look at we look at the plain language of the text which we would acknowledge does not reveal whether there is a finality requirement but the decision in ten we're also tells us to look at the current context of the context of the statute and the statute as a whole and when doing so we see we we  see that there there is a whole bot there is a body of decision a law that congress was aware is presumed to have been aware of when it legislated the term conviction and that instructs us that the that the statutory term retains a finality requirement but even if even if at that initial step the court were to conclude that the text of the statute in the context of legislation were not were did not tell us whether there remains context but it's pretty clear that phrase is congress took that phrase from the board's definition board's decision in matter of a formal dodge judgment of guilt that a court had entered and  the board explained that that and that that includes both that includes a finding of guilt the imposition of the sentence and then went on to explain that that also requires the exhaustion or waiver of all appellate remedies and so the board of immigration appeals for decades had understood that if that a formal judgment of guilt entered by a court includes this finality requirement and this court in point low similarly and similarly tells us that the that the term conviction and the term formal judgment of guilt is not self defining as one might be as one might want to conclude in point low in a footnote one this court told us that a formal judgment of guilt requires more than just than just the a finding of guilt it also requires the imposition of a sentence which is similarly not found in the statutory tax and so why are the results of this new definition by congress in one thousand nine hundred six and as i understand it was really largely education the same digitization in maryland would the imposition of immigration consequences would defer if that person were in maryland or if they'd been adjudicated different there'd been a different view to cation in  the under the ninety six definition at the point that the deferred adjudication converts to converts to a formal judgment of guilt if there are any remaining appellate remedies that someone who were the initial disposition was a different education if there are remaining direct appeals as of right then it is the same it is the treated the same way as a formal judgment of guilt there remains a finality requirement i see that i'm over time please the court my name is paul gross and i'm here today on behalf of the petitioner i'm going to restrict my oral argument to the issues of withholding of removal and a particular serious crime issue on behalf of the petitioner i would like to state that the immigration judge committed a violation of my client fundamental due process right when he stated that my client failed to submit country conditions evidence this was such an egregious error because the immigration judge specifically stated on the record the court must consider relevant state department reports and then he goes on to state that the respondent submitted another report which the court will address below in this decision this misstatement is directly contradicted by the immigration judge the woman on page fifty six of the record on done in this matter so i don't think it's appropriate for this court to make findings of fact that haven't been made in the court below however the be in a different matter totally in a different interpretation of the same matter guy please the court rebecca phillips on behalf of the united states attorney general i'm just going to pick up right where he left off i will say if the court would like to know the status of the state court proceedings that is really not before the court and i'd really like to stick with the record that is before the court but at the same time i understand this court's concern and it was the complete lack of information about that appeal from the government's perspective that has been the continuous thread of this case if the government had been presented with the right kind of evidence at the right time the proceedings may have gone about differently this is evident from the very beginning when the immigration judge is asking for information about what's going on in the state court now interestingly enough the petition so are you suggesting you saying that if he had provided sufficient evidence about actual appeal you would have proceeded differently well your honor actually under matter of monti all which was decided and i'll get to that in a moment that sets forth the criteria that's really going to be shown to as to whether or not there's going to be administrative closure which i'll get to in a minute but at the immigration judge stage which predates the matter of monti all the immigration judge is asking for evidence of what is going on he didn't even know the petitioner didn't know if it was a four forty motion or a direct appeal there was no evidence presented to the immigration judge so the the judge what he knew or just didn't have papers he just said i have nothing to do with this offense he wasn't even clear about what crimes he'd been arrested for he seemed to really be denying any involvement in this criminal sale of the  heroin even though there was conviction records that were used in the particularly serious crime finding that actually were casting doubt on a lot of his statements that you answer my question yes that said in response to those questions i have a  direct appeal how would you proceed if well your honor if he has a pending direct appeal he should have asked for administrative closure and satisfied the criteria in monteagle which is what his problem was before the board when he context of a direct appeal but your honor you as you mentioned before you expressed a little bit of sympathy as to maybe how the statute takes away the appeal rights the board has created this work around from my perspective because since this court's decision in i understand it's very clear by the statutory language that there is actually no ability to exhaust an appeal before a conviction is held against you and i know judge poor you are on the panel in a lay whoa which specifically affirmed that finding and  to say that it was purely dicta in that case is really not fair when you have a case that came out right afterwards or swithin the next year specifically relying on poilu if if and if an applicant is removed  well your honor that i think that was the board's concern as well and that's why the administrative closure remedy was specifically created a matter of monty hall the board laid out the criteria relying on it matter of a vid a c n n saying here's what you can show if you have a direct appeal pending we'd like to know what are the factors that you would like us to consider for as an administrative convenience to avoid the hassle of bringing someone back in to avoid either that there was some differing opinions among the board and in that decision the board was understanding of the fact that the plain language of the statute said what it said but recognizing it had this prior precedent on the issue the problem in that case was there was an untimely reinstatement of appeal as actually was in this case and the board treated it differently from a direct appeal which was simply and correct the problem is it went back to the board by the time i got back to the board the issue was moot because the appeal of been denied we never got  to the well your honor we have to we haven't yet to be presented and i actually tell you this that last week the four forty appeal was denied i don't know that counsel he seemingly is unaware of it but i've been trying to get to the bottom of the state court proceedings the direct have the ability to seek an untimely appeal of the four forty denial you see there's a confusing set of circumstances here and and this is exactly why the finality rule is necessary in this case he was convicted in two thousand and fourteen i'm sorry two thousand and thirteen twenty thirteen we're going on five years and his direct appeal is still pending however what happened was he did not timely appeal he sat on the ability didn't didn't do that then got a reinstatement of his appeal in two thousand and fourteen then when he did three years to seek appointment of counsel which he finally received in twenty seven thousand now the new york state court won't dismiss a case no matter how long it sets this is what i've learned they also don't have pacer so that the government cannot keep track of what's going on history to try to create an ambiguity in a statute when the language in the text is clear as your honor pointed out that is the end of the matter there's no room for chevron deference in a case where the statutory language is clear and unambiguous and so the problem here is that you try to rely on a prior board interpretation that predates the plain clear exact language of the statute and maybe you have misunderstood  order well lo might be dicta in terms of its ultimate conclusion was a different conclusion but in analyzing the statute as an ambiguous with respect to the definition of conviction being an ambiguous and then your honor that means that it's a clear text statute and the fact of the matter is is that the the word may have had a prior interpretation but if the court has which followed we describe the you that you're a lawyer well you said that the court had suggested something and that was again an unpublished order you are on or so we have a lot of unpublished decisions here that are not exactly  authoritative when it comes to saying what puello mentored or did it all right so this court has the ability to affirm to alow in this particular context to make clear exactly what puello did or did not say based on the plain language of the definition of conviction but keeping in mind that what the board has done since matter of a brew the board has had several instances i think to and including a matter of monte all the board had the opportunity at that point to try to fashion another interpretation of the definition of conviction and the board specifically declined to do so possibly with in mind the fact that every single circuit court with the exception of the third circuit in rabi has come to the exact same conclusion which is the text is clear it says what it says a conviction is a conviction for immigration purposes as long as there's a trial court judgment in place it seems to me that we have two questions here one is what we can do is for mr mohammed and the other is whether we want to issue second circuit law that's by and cited to us or summary orders which have no presidential value of course  well your honor it has always been his ability to file this motion to reconsider it is not for the court to do it is always been his ability we actually thought that he would have filed something we asked repeatedly for a status update on the case this was my colleague back in two thousand and sixteen there's a series of e mails where we never got the information to make an informed decision about what our position might be and whether that even matters when you're  was before the court your honor what's interesting is that in the immigration record i would tell you at page eighty nine he references mr gross as the attorney handling his criminal appeal at the time that his case was before the immigration judge now i can't i don't know why no evidence was presented to the immigration judge i don't know why any evidence other than a single order which didn't say anything about maybe what the arguments for example a matter of they were looking maybe it's a facially frivolous appeal that we don't worry about waiting for worrying about administrative closure and they noted that it was a jury trial as opposed to here we had a guilty plea we also have evidence in the record where he admits that he sold heroin to an undercover cop in the form of his arguments as to why his crime was not particularly serious so you essential he had this admission of guilt we're normally we don't look to the underlying facts because we're very keen on the categorical approach and matching elements we don't like to go behind the record of conviction and try to determine what is the likelihood that he was wrongly convicted or has a valid appeal the problem in this case for him is that in the particularly serious crime context we are allowed to go beyond the elements we are allowed to look at the circumstances to see whether it's particularly serious we had him arguing well i only saw heroin to another cover cop on this one occasion and so he's admitting the basis for his conviction which is criminal sale of a controlled substance and and in this case i think it was a little bit of a tough pill to swallow for the board to say will power going in this order that your appeal well it's been reinstated but the fact is we don't know how are you planning to challenge your appeal and this is what matter of monteagle is looking at is it a facially frivolous appeal what might you be arguing under the circumstances that we see in this record and just go back to the first issue absolutely because we do as you know we also in the second circuit have got this in the sort of closure process yes your honor why can't we hold this in abeyance while you work this out well your honor the fact is that this is a this is a richly in that case yes your honor  and i have no control over whether it's argued or not that i know yes but the fact of the matter is is that this case really underscores the need for finality and the fact that it's the petitioners burden it always has been to come forward with the board in a motion to reopen or a motion to reconsider without evidence it has to be that way because he is in the best position to know what is going on in his case i had to jump through several hoops to find out the status of this case it is it without a pacer docket in the new york state court it's quite difficult for the government to be in the position to keep track of a state court proceeding and not only that but that's exactly the reason why we have the rules that we do because congress understood the impracticality of the government chasing down state court proceedings to find out what is the likelihood of success it has too much information frankly is your point i'm not sure you can lead with it but we should deferral claim and he has raised an issue that was clearly addressed in our brief in terms of did the immigration judge review the evidence here and the answer is that the immigration judge misspoke at one point and said that something wasn't submitted actually seemingly reviewed all of the evidence and then he never showed any prejudice in terms of what was in the record that the immigration judge didn't review that supports his case and so without going into the underlying facts of this case because the court is prohibited from doing so under twelve fifty two a to c and to all fifty to eighty two d only leaves legal and constitutional claims no violation of due process here contrary to my counsel's assertion he was given lots of process there was an adverse credibility find  your honor the issue has not yet been taken up by the supreme court and the government encourages this court to follow the overwhelming majority of the courts that have decided the issue and this court's decision in a low which would with no that's this court as is free to decide this case presents the exact reason why the finality rule is so important as we go on to the fifth year of a pending appeal with little to no information submitted you want to before i answer that question i wanted to point out something on the record on page one thirty seven prior counsel submitted a motion to remain to the board of immigration appeals which opposing clients counsel agreed to seeking from the board immigration appeals to remain and this case from the b i a to the immigration judge and surprisingly the be immigration judge despite both parties concurrence on what action to take in this case deny that motion and had they closure i think i think what it leads to is the confusing part from opposing counsel she's at the same time advocating two arguments it seems on the one hand she's advocating for remained so that we can get to the bottom of the facts it seems on the other hand she's advocating for universal rule that my client has no ability to pursue his appeal while the united states and that he should be deported i presume any appellate remedies from his home country i think that's really where the confusing thing that i honestly don't know from listening to what she said what she wants this c law it is certainly the case that the ninth circuit has held that the conviction finality rule did not survive our ira the third circuit squarely broke with the ninth and the or i v decision in two thousand and fourteen and it's our position that the sixth has joined the third and that no other no other court has resolved the question and we've addressed those cases on page twelve of our brief what the court has resolved their question in person digital opinion yes judge and that a number of the decisions that the that the government relies statement was dipped and that issue was not presented in the play low case and i would imagine that if that argumentation was not presented or briefed perhaps the panel would reach a different conclusion had had had it had all the information available to it  i think the point of decision is particular is particularly relevant to this court's consideration because it speaks directly to the question of statutory ambiguity it looked to the meaning of the phrase formal judgment of guilt and found that that the court's precedent that the court's precedent the precedent of other circuits meant that you know one needs to read into that statutory term in order to understand how far it is in the state adjudicatory process one gets before before a formal judgment of guilt has been entered as that term is defined in the immigration nationality act and the court employ low found that it that it at least got as far as the imposition of the sentence which is not present in the statutory text and play the at least gets us to the point