20

- 27 Brathwaite v. Garland
I N THE 1 

# United States Court of Appeals 2 

# For the Second Circuit 3

________ 4
A UGUST T ERM 2020 5 6 A RGUED : J ANUARY 5 , 2021 7 D ECIDED : J U L Y 1 , 2021 8 9 No. 20

- 27 10
11 

### A LDWIN 

### J UNIOR 

### B RATHWAITE , 

### AKA A LDWIN 

### B RATHWAITE 

### , AKA J OHN 12 

### T HOMAS 

### , AKA A LDWIN 

### J. B RAITHWAITE 

### , AKA A LDWIN 

### J UNIOR 

### B RATHWAITE 13 

### B YER 

### , 14
Petitioner , 15 16

v. 17 18 

### M ERRICK 

### B. G ARLAND 

### , 19 

### U NITED 

### S TATES 

### A TTORNEY 

### G ENERAL , 20 Respondent

. * 21 22 23

________ 24 25 Petition for Review of a Decision by the Board of Immigration Appeals 26 A036

- 668

- 868 27 28

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted for former Attorney General William P. Barr as Respondent.20

- 27 Brathwaite v. Garland

2 ________ 1 2 3 Before: C ALABRESI , R AGGI , AND C HIN , Circuit Judges

. 4 5 6

________ 7

8 Petitioner Aldwin Junior Brathwaite petitions for review of an order of 9 removability, entered by the Honorable Joy A. Merriman, U.S. Immigration Judge 10 (“IJ”), on June 11, 2019, and approved by the Board of Immigration Appeals 11 (“BIA”) on December 11, 2019. Because the BIA ’ s decision is premised on an 12 unreasonable construction of the Illegal Immigration Reform and Immigrant 13 Responsibility Act of 1996 (“IIRIRA”), we GRANT the petition for review and 14 REMAND the matter to the BIA for further proceedings consistent with this 15 opin ion

. 16
17

18
J OHN P ENG , E SQ

. ( Nicholas J. Phillips , Esq., Joseph Moravec, Esq. , on the 19 brief ), Prisoners’ Legal Services of New York , Buffalo, New York , for 20
Petitioner

. 21

K EITH I. M C M ANUS , ( Jessica E. Burns , on the brief) , U.S. Department of 22 Justice, Office of Immigration Litigation , f or Brian Boynton, Assistant 23 Attorney General, Civil Division, Washington, District of Columbia , 24 for Respondent

. 25

M ARK V ORKINK ( Paul Skip Laisure , on the brief ) , New York, New York, 26 for Appellate Advocates, The Legal Aid Society of Nassau County, The 2720

- 27 Brathwaite v. Garland

3 Office of The Appellate Defender, and The Chief Defenders 1 Association of New York, Amici Curiae in support of Petitioner

. 2

3

4

C ALABRESI , Circuit Judge : 5

Under the Immigration and Nationality Act ( “ INA ” ), a noncitizen may be 6

order ed removed on the basis of a qualifying “conviction.” See 8 U.S.C. 7
§ 1227(a)(2). Before 1996, the INA did not define “ conviction. ” But f or decades , 8
federal courts and the BIA followed the principle, first set forth by the Supreme 9

Court in Pino v. Landon , 349 U.S. 901 (1955), that noncitizen s cannot be removed 10

until their conviction s ha ve attained a sufficient degree of finality

— that is, until 11

direct appellate review of the ir conviction s ha s been exhausted or waived. When 12
Congress defined “conviction” in the Illegal Immigration Reform and Immigrant 13
Responsibility Act of 1996 (“IIRIRA”), it generally followed what courts had held 14

“conviction” meant , but it said nothing about the well

- established finality 15
requirement. See 8 U.S.C. § 1101(a)(48)(A). 16

In a recent precedential decision, Matter of J.M. Acosta , 27 I. & N. Dec. 420 17
(BIA 2018), the BIA i nterpreted the IIRIRA’s definition o f “conviction” and 18
reaffirmed the principle that a conviction cannot trigger deportation until direct 1920

- 27 Brathwaite v. Garland

4 appellate review is exhausted or waived. But the BIA put new limits on th is 1
principle

. Specifically, i n cases where the state’s initial period for filing a direct 2
appeal has expired, the BIA devised a burden

- shifting framework : o nce the initial 3
time period for filing an appeal expires, a “presumption ” of finality attaches, and 4
the noncitizen bears the burden of proving that (1) the appeal has been filed and 5
is pending, and (2) “the appeal relates to the issue of guilt or innocence or concerns 6
a substantive defect in the criminal proceedings.” 27 I. & N . Dec. at 432. Under th is 7
presumption of finality, “[a]ppeals, including direct appeals, . . . that do not relate 8
to the underlying merits of the conviction will not be given effect to eliminate the 9
finality of the conviction.” Id. at 433. 2 10

Petitioner Ald win Junior Brathwaite (“Brathwaite” or “Petitioner”) seeks 11
review of a BIA decision ordering his removal on the basis that Brathwaite failed 12

to offer sufficient evidence that the appeal of his criminal conviction

— filed after 13
the initial period for filing a direct appeal expired

— g oes to the merits of his 14

2 T he G overnment suggested at oral argument that the merits

- based showing applies to all appeals, see Oral Arg. at 30:00

– 32:00, both those timely filed and those for which leave is granted to file out of time . I n this case we are required to address only the latter appeal and, thus, we express no view as to what, if any, requir ements the G overnment might impose on the former to defer the identification of a “conviction.”20

- 27 Brathwaite v. Garland

5 conviction

. His case raises t hree issues . First, whether the IIRIRA’s definition of 1
“conviction” is ambiguous. Second, if so , whether the BIA ’s interpretation of the 2
statute is reasonable, that is, (a) whether the finality requirement persists; and (b) if 3
so, whether the BIA may put limits on it. T hird, and finally, w hether the limit s 4
imposed by the BIA in J.M. Acosta are reasonable. 5

W e hold that the IIRIRA’s definition of “conviction” is ambiguous

. We also 6
hold that the BIA reasonably determined that the finality requirement persists. W e 7

need not determine whether the BIA may put limits on the finality requirement, 8
however, as even assuming it may, we hold that the limitations the BIA imposed 9

in J.M . Acosta are unreasonable . A ccordingly, we VACATE the BIA’s decision and 10
REMAND this matter to the BIA for further proceedings consistent with this 11
opinion. 12

BACKGROUND 13

Brathwaite is a citizen of Trinidad and Tobago who entered the United 14
States in 1979 as a lawful permanent resident. In January 2018, Brathwaite pleaded 15
guilty to several identity theft and grand larceny charges. He was sentenced to two 16
to four years of imprisonment, with the sentences to run concurrently. 1720

- 27 Brathwaite v. Garland

6 In October 2018, while Brathwaite was incarcerated, the Department of 1

Home land Security (“DHS”) initiated removal proceedings against him . DHS 2
charg ed that Brathwaite wa s removable based on his conviction for aggravated 3
felonies as defined by 8 U.S.C. § 1101(a)(43)(G), (M) , (U), and for a crime involving 4
moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii )

. 5

Several months later, Brathwaite filed a motion with the First Judicial 6
Department of the New York Appellate Division pursuant to New York Criminal 7
Procedure Law (“NYCPL”) § 460.30 for an extension of time to appeal his 8

conviction. T he Appellate Division granted his motion, “deeming the moving 9
papers as a timely filed notice of appeal.” People v. Brathwaite , 20 19 N.Y. Sli p Op. 10
71042(U) ( 1st Dep’t May 23, 2019) (unpublished order)

. Armed with the now 11
timely filed notice of appeal, Brathwaite moved to terminate removal proceeding s , 12
asserting that , as his convictio n w as under appeal , it was no t final

— and , thus , not 13

a “conviction”

— for immigration purposes. DHS argued in opposition that 14

Brathwaite’s conviction w as final when removal proceedings began , and that 15

Brathwaite had failed to submit adequate evidence establishing that his appeal 16

went to the merits. 1720

- 27 Brathwaite v. Garland

7 The I J denied Brathwaite’s motion to terminate removal proceedings . I n 1
doing so , it adopt ed and incorporat ed the reasoning of the BIA’s precedential 2

decision Matter of J.M. Acosta , 27 I. & N. Dec. 420 (BIA 2018). As stated earlier, in 3
J.M. Acosta , the BIA (a) concluded that the definition of “conviction” in the IIRIRA 4
is ambiguous, and ( b) interpreted the statute to retain the principle that “a 5
conviction does not attain a sufficient degree of finality for immigration purposes 6
until the right to direct appellate review on the merits of the conviction has been 7

exhausted or waived.” 27 I. & N. Dec. at 432. T he BIA , however, t hen went further. 8

In cases where “the time for filing an initial direct appeal has expired under the 9
laws of the applicable jurisdiction,” it determine d that a noncitizen’s conviction 10

should be presumed to be final. Id. To rebut th is presumption of finalit y , the BIA 11

held that the noncitizen must both “come forward with evidence that an appeal 12
has been filed within the prescribed deadline, including any extensions or 13
permissive filings granted by the appellate court” and “present evidence that the 14
appeal rel ates to the issue of guilt or innocence or concerns a substantive defect in 15
the criminal proceedings.” Id

. 16

Applying J.M. Acosta to Brathwaite’s case, the IJ held that the evidence he 17
submitted to rebut the presumption of finality

— the Appellate Division or der 1820

- 27 Brathwaite v. Garland

8 granting Brathwaite’s motion to late file his appeal

— was “legally insufficient.” 1
Special App’x at 8. 2

Brathwaite appealed to the BIA, which issued a single

- member unpublished 3

decision dismissing the appeal

. T he BIA noted that at the time Brathwaite was 4
placed in removal proceedings in October 2018, the thirty

- day appeal period 5
provided by NYCPL § 460.10(1)(a) had already passed. As a result, the BIA 6
concluded that the IJ properly relied on J.M. Acosta to find that B rathwaite’s 7

conviction must be presumed to be final for immigration purposes

. Moreover, the 8
BIA held that Brathwaite had not carried his burden of showing non

- finality

. 9

While the Appellate Division had granted him leave to file a late notice of appeal, 10

the BIA stat ed that Brathwaite had not submit ted evidence that established that he 11
had perfected an appeal “relating to the issue of guilt or innocence, or concerning 12
a substantive defect in the criminal proceedings,” and had not otherwise “show[ n ] 13
what argum ent he was pursuing” on appeal. Special App’x at 5

. This timely 14
petition for review of the BIA’s decision followed. 15

Before this court, Brathwaite argues , inter alia , that the statutory text, history, 16

and context of the IIRIRA establish that Congress unambiguously retained the 17
requirement that a conviction challenged on direct appeal i s not final for 1820

- 27 Brathwaite v. Garland

9 immigration purposes , and that the J.M. Acosta framework therefore imp oses 1
impermissible new limitations on finality

. I n Brathwaite’s view, J.M. Acosta 2
violates finality because it allows a conviction to become a predicate for removal 3
before appellate review has been exhausted . He also argues that the agency’s 4
interpretation in J.M. Acosta is impermissible because it undermines th e due 5
process rights of noncitizens and interferes with the states’ ability to administer 6
their criminal justice systems. 7

The Government contends that J.M. Acosta is a reasonable interpretation of 8
an ambiguous statutory phrase, and hence , that the BIA’s interpretation is entitled 9

to Chevron deference. See Chevron, U.S.A., Inc. v. Nat

. Res. Def. Council, Inc ., 467 U.S. 10
837, 843 (1984)

. As the Government sees it , th e framework set forth in J.M. Acosta 11
appropriately prevents noncitizen defendants from forestalling their removal 12

while the y appeal non

- substantive defects in their criminal proceedings

. 13

DISCUSSION 14

A. Standard of Review 15

Where, as here, the BIA adopts the IJ’s reasoning and offers additional 16
commentary, we review the decision of the IJ as supplemented by the BIA. See Yan 1720

- 27 Brathwaite v. Garland

10 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005)

. We review the BIA’s legal 1
conclusions de novo, but we afford deference to the agency’s interpretations of the 2

INA when appropriate under Chevron

. Oppedisano v. Holder , 769 F.3d 147, 150 (2d 3
Cir. 2014). “[I]f the statute is silent or ambiguous with respect to the specific issue, 4
the question for the court i s whether the agency’s answer is based on a permissible 5

construction of the statute.” Chevron , 467 U.S. at 843. Where the BIA’s 6
interpretation is “arbitrary, capricious, or manifestly contrary to the statute,” it 7

merits no deference. Singh v. Gonzales , 468 F.3d 135, 139 (2d Cir. 2006) (quoting 8
Evangelista v. Ashcroft , 359 F.3d 145, 150 (2d Cir. 2004) (internal quotation marks 9
omitted)). And where, as here, the court reviews an unpublished BIA decision that 10
relies on a binding published decision , Chevron deference extends to any 11

“ reasonable resolution of statutory ambiguity ” that was established in the earlier 12

decision

. Higgins v. Holder , 677 F.3d 97, 103 (2d Cir. 2012). 13

B. Whether the IIRIRA’s definition of “conviction” is ambiguous 14

“The plainness or ambiguity of statutory language is determined by 15
reference to the language itself, the specific context in which that language is used, 16

and the broader context of the statute as a whole.” Kar Onn Lee v. Holder , 701 F.3d 17
931, 936 (2d Cir. 2012) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 341 (1997)). 1820

- 27 Brathwaite v. Garland

11 “In interpreting the statute at issue, we consider not only the bare meaning of the 1
critical word or phrase but also its placement and purpose in the statutory 2

scheme.” Id . (quoting Holloway v. United States , 526 U.S. 1, 6 (1999)). 3

The IIRIRA defines the term “conviction,” as used in the INA, as: 4

a formal judgment of guilt of the alien entered by a court or, if 5 adjudication of guilt has been withheld, where . . . 6 (i) a judge or jury has found the alien gu ilty or the alien has 7 entered a plea of guilty or nolo contendere or has admitted 8 sufficient facts to warrant a finding of guilt, and 9 (ii) the judge has ordered some form of punishment, penalty, or 10 restraint on the alien’s liberty to be imposed. 11 8 U.S.C. § 1101(a)(48)(A). 12

On its face, the provision says nothing about whether a conviction must be 13
“final” in order to predicate removal. Congressional silence typically suggests 14
ambiguity under step one of the Chevron analysis. See Barnhart v. Walton , 535 U.S. 15
212, 218 (2002) (“[S]ilence . . . normally creates ambiguity.”). 16

Brathwaite , nevertheless, argues that traditional tools of statutory 17
construction compel the conclusion that the IIRIRA’s definition of conviction 18
contains a finality requirement. His a rgument relies on statutory context as well as 19
legislative history. 2020

- 27 Brathwaite v. Garland

12 He first observes that the IIRIRA ’s definition of “conviction” was drafted 1
against the backdrop of a longstanding finality requirement. Prior to the IIRIRA, 2

t he INA did not provide a stat utory definition of “conviction

. ” See Griffiths v. INS , 3
243 F.3d 45, 49 (1st Cir. 2001). But in 1955, the Supreme Court implicitly recognized 4

that a “conviction” for immigration purposes require s finality. See Pino , 349 U.S. 5

at 901 (holding record evidence was insufficient to show that “ conviction has 6
attained such finality as to support an order of deportation within the 7
contemplation of [former Section] 241 of the Immigration and Nationality Act, 8 8
U.S.C.A. § 1251 [(1952)]” ) . Thereafter, the rule universally accepted by the federal 9

courts was that a conviction had to be “final” before it c ould trigger removal. See, 10

e.g. , Marino v. INS , 537 F.2d 686, 691

– 92 (2d Cir. 1976)

. Moreover, “ f inality d [id] 11

not occur unless and until direct appellate review of the conviction (as contrasted 12
with collateral attack) ha [d] been exhausted or waived .” Id. ; see White v. INS , 17 13
F.3d 475, 479 (1st Cir. 1994); Martinez

- Montoya v. INS , 904 F.2d 1018, 1025 (5th Cir. 14
1990); Morales

- Alvarado v. INS , 655 F .2d 172, 174

– 75 (9th Cir. 1981); Aguilera

15
Enriquez v. INS , 516 F.2d 565, 570 (6th Cir. 1975); Will v. INS, 447 F.2d 529, 532

– 33 16
(7th Cir. 1971). 1720

- 27 Brathwaite v. Garland

13 After Pino v. Landon , t he BIA , like the courts, consistently interpreted 1

“conviction” in the removal context t o require finality. See Matter of Thomas , 21 I

. 2

& N

. Dec. 20, 21 n.1 (BIA 1995); Matter of Polanco , 20 I

. & N

. Dec. 894, 895

– 96 (BIA 3
1994); Matter of Ozkok , 19 I

. & N

. Dec. 546, 552 n.7 (BIA 1988). 4

In Ozkok , a pre

- IIRIRA case , the BIA noted that a person was convicted if 5
“the court has adjudicated him guilty or has entered a formal judgment of guilt.” 6

19 I

. & N

. Dec. at 551. The BIA then wrestle d with how to identify a “conviction” 7

in cases of “deferred adjudication,” in which defendant s pleaded guilty or no 8
contest to criminal charges in exchange for meeting certain requirements laid out 9
by the court , the completion of which would allow defendant s to avoid formal 10

conviction. The BIA stated tha t in these deferred adjudication case s, a “conviction” 11
was evident when all of the following elements wer e present : 12

(1) a judge or jury has found the alien guilty or he has entered a plea 13 of guilty or nolo contendere or has admitted sufficient facts to wa rrant 14 a finding of guilty; 15 (2) the judge has ordered some form of punishment, penalty, or 16 restraint on the person’s liberty to be imposed (including but not 17 limited to incarceration, probation, a fine or restitution, or 18 community

- based sanctions such as a rehabilitation program, a work

19 release or study

- release program, revocation or suspension of a 20 driver ’ s license, deprivation of nonessential activities or privileges, or 21 community service); and 2220

- 27 Brathwaite v. Garland

14 (3) a judgment or adjudication of guilt may be entered if the person 1 violates the terms of his probation or fails to comply with the 2 requirements of the court’s order, without availability of further 3 proceedings regarding the person’s guilt or innocence of the original 4 charge. 5 Id

. at 551

– 52 (footnote omitted). 6

Significantly, in a footnote to the third element , t he BIA made clear that 7

Ozkok did not disturb the longstanding finality requirement

. I t is “well 8

established ,” the BIA explained, “ that a conviction does not attain a sufficient 9
deg ree of finality for immigration purposes until direct appellate review of the 10

conviction has been exhausted or waived.” Id . at 552 n.7 (citing Marino , 537 F.2d at 11
686). 12

When in 1996 Congress enacted the current definition of “conviction” as 13
part of the IIRIRA, it derived this definition almost verbatim from Ozkok , but it 14
omitted the third prong and with it the footnote referencing finality

. Compare id. at 15

551

– 52 with 8 U.S.C. § 1101(a)(48)(A). The IIRIRA House Conference Report 16
explains that legislators removed the third prong concerning deferred 17
adjudications in a deliberate attempt to “broaden[] the scope of the definition of 18

‘conviction’” because Ozkok did “not go far enough to address situations where a 19
judgment of guilt or imposition of sentence is suspended, conditioned upon the 2020

- 27 Brathwaite v. Garland

15 alien’s future good behavior.” H.R. Conf. Rep. No. 104

- 828, at 224 (1996). The 1

amended definition thus “clarifie [d] Congressional intent that even in cases where 2
adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to 3

establish a ’ conviction ‘ for purposes of the immigration laws.” Id .; see also H.R. 4
Rep. No. 104

- 879, at 123 (1997) (Letter of Transmittal) (stating that IIRIRA “make [s] 5
it easier to remove criminal aliens, regardless of specific procedures in States for 6
deferred adjudication or suspension of sentence s ”). 7

Brathwaite argues that by adopting nearly verbatim the Ozkok definition of 8
“conviction,” Congress imported Ozkok ’s finality requirement. He asserts that the 9
only change made went to deferred adjudications. And he points out that “when 10
judicial interpretations have settled the meani ng of an existing statutory provision, 11
repetition of the same language in a new statute indicates, as a general matter, the 12
intent to incorporate its . . . judicial interpretations as well.” Merrill Lynch, Pierce, 13

Fenner & Smith Inc. v. Dabit , 547 U.S. 71, 85

– 86 (2006) (internal quotation marks 14
omitted) (quoting Bragdon v. Abbott , 524 U.S. 624, 645 (1998))

. 15

Brathwaite further insists that Congress would be expected to speak clearly 16
and directly if it intended to modify a long

- established judicial interpreta tion of 17
an important legal question. Cf. Food & Drug Admin. v. Brown & Williamson Tobacco 1820

- 27 Brathwaite v. Garland

16 Corp ., 529 U.S. 120, 159 (2000) (“Congress is more likely to have focused upon, and 1
answered, major questions, while leaving interstitial matters to answer themselves 2
in the course of the statute’s daily administration.” (internal quotation marks 3
omitted) ); see also Saxbe v. Bustos , 419 U.S. 65, 74

– 75 (1974) (“[L]ongstanding 4
administrative construction [of an INA provision was] entitled to great weight” 5
and was not “repealed sub silentio” by Congress). 6

The Government contends , however, that the IIRIRA’s definition of 7

“conviction , ” which includes no discussion of finality, is neither plain nor subject 8
to an ordinary meaning analysis

. It argues that the term is therefore am bi g u ous. 9
And, in support of its arguments, it points to dis parate interpretations of that term 10
employed by our sister circuits. 11

The various courts of appeal s, including our own, have indeed differed on 12
the meaning of “conviction ” in the IIRIRA. We conclude that the relevant IIRIRA 13
provision, which defines “conviction” as “a formal judgment of guilt of the alien 14
entered by a court,” 8 U.S.C. § 1101(a)(48)(A), is sufficiently ambiguous to warrant 15

Chevron analysis. On the one hand, the word “entered” might be understood to 16
indicate that a “conviction” occurs when the trial court enters its judgment of 17
conviction in the record, i.e. , before the defendant files any notice of appeal. See, 1820

- 27 Brathwaite v. Garland

17 e.g. , Planes v. Holder , 652 F.3d 991, 995 (9th Cir. 2011) (reasoning that, “as a matter 1
of logic, a defendant cannot appeal a conviction until after the entry of a judgment 2
of guilt” and, therefore, that “a ‘conviction’ .

. . exist s once the district court enters 3
judgment, notwithstanding the availability of an appeal as of right ” ). On the other 4
hand, such a conclusion seems , in the immigration context, absurd, if not at least 5
fundamentally unfair, because a direct appeal

— at least one on the merits

— could 6
result in reversal or vacatur of the judgment of conviction, thus eliminating the 7

basis for removal. See Gibbons v. Bristol

- Myers Squibb Co. , 919 F.3d 699, 705 (2d Cir

. 8
2019) (observing that courts seek to avoid constructions yielding absurd or 9
fundamentally unfair results)

. Thus, t he text alone does not permit us to conclude 10
confidently that Congress intended a district court’s entry of judgment to identify 11

a “convicti on” for purposes of immigration law when the validity of that judgment 12

of conviction could be challenged on direct appeal. 13

Indeed, that uncertainty is reinforced by the recognition that Congress 14
derived § 1101 (a) (48)(A)’s definition of “conviction” almost verbatim from Ozkok , 15

a decision that clearly preserves the longstanding exhaustion/waiver of direct 16
appeal requirement for the identification of a conviction. See 19 I

. & N

. Dec. at 552 17
n.7 (“It is well established that a conviction does not attain a suffi cient degree of 1820

- 27 Brathwaite v. Garland

18 finality for immigration purposes until direct appellate review of the conviction 1
has been exhausted or waived.”). In such circumstances, canons of construction 2
counsel that the statute incorporates existing case law. “When the words of” an 3
adjudicative body “are used in a later statute governing the same subject matter, 4
it is respectful of Congress and of” that body’s “own processes to give the words 5
the same meaning in the absence of specific direction to the contrary.” Williams v. 6
Taylor , 529 U.S. 420, 434 (2000); see also, e.g. , New York v. U.S. Dep’t of Homeland Sec. , 7
969 F.3d 42, 71 (2d Cir. 2020) (applying a similar ratification canon). 8

Further, legislative history reveals that, to the extent Congress departed 9

from Ozkok ’s defin ition of conviction, it did so only to close a specific loophole: 10
preventing convicted noncitizens from avoiding removal indefinitely if they had 11
been subject to a deferred adjudication proceeding in certain states whose deferred 12
adjudication procedures re quired “an additional proceeding regarding the alien’s 13
guilt or innocence” in the event of a violation. H.R. Conf. Rep. 104

- 828, at 224 14
(1996) (emphasis added) (observing that “[i]n such cases, the third prong of the 15

Ozkok definition prevents the original finding or confession of guilt to be 16

considered a ‘conviction’ for deportation purposes” and expressing 17
“Congressional intent that even in cases where adjudication is ‘deferred,’ the 1820

- 27 Brathwaite v. Garland

19 original finding or confession of guilt is sufficient to establish a ‘con viction’ for 1
purposes of the immigration laws”). Further, the legislation that became 2
§ 1101 (a) (48) (A) , both as initially proposed and as passed by both chambers, kept 3

Ozkok ’s definition virtually intact; only in conference did Congress amend the 4

definitio n by removing Ozkok ’s third prong. Compare H.R. 2202, 104th Cong. § 351 5
(as introduced Aug. 4 , 1995); H.R. 2202, 104th Cong. § 351 (as engrossed in House 6
Mar. 21, 1996) with H.R. Conf. Rep. 104

- 828, at 84 (1996). Looking to the text, 7
structure, and purpose of the statute, therefore, we would find

— as the BIA has 8

and as the G overnment urges

— ambiguity as to whether Congress intended the 9
term “conviction” in § 1101(a)(48)(A) to incorporate an exhaustion/waiver 10
requirement. 11

We recognize that, since 1996, several of our sister circuits to consider the 12
question have held that the IIRIRA unambiguously eliminated the 13
exhaustion/waiver requirement for all forms of convictions. In so finding , these 14

courts have relied primarily on the fact that Congress (1) enac ted a definition of 15
“conviction” that did not expressly reference exhaustion, waiver, or finality; and 16
(2) eliminated the third prong of Ozkok ’s deferred adjudication test. See, e.g. , 17
Siddiqui v. Holder , 670 F.3d 736, 751 (7th Cir. 2012); Planes , 652 F.3d at 996; Waugh 1820

- 27 Brathwaite v. Garland

20 v. Holder , 642 F.3d 1279, 1284 (10th Cir. 2011) . For reasons already stated, we do 1
not find these observations conclusive on the question of Congress’s intent. In 2
addition, some of these cases apparently relied on dicta from earlier cases 3

in volving deferred adjudications, where the exhaustion/waiver requirement was 4
merely an alternative argument and was admittedly not dispositive of the petition 5

for review

. See, e.g. , Moosa v. INS , 171 F.3d 994, 1009 n.8 (5th Cir. 1999)

. 6

At the same time, we cannot join those of our sister circuits that have 7

concluded that the IIRIRA unambiguously retain s the exhaustion/waiver 8
requirement. See, e.g. , Orabi v. Att’y Gen. of the U.S. , 738 F.3d 535, 540 (3d Cir. 2014) 9
(emphasizing that Ozkok was designed to address, specifically, discrepancies 10
following “the subject alien[’s] .

. . violat[ion of] a term o r condition o f probation” 11
in a deferred adjudication procedure); Griffiths v. INS , 243 F.3d 45, 54 (1st Cir. 2001) 12
(concluding “ statutory la nguage and

. . . legislative history reflect a determination 13
that a distinct mode of treatment for deferred adjudications is appropriate ”). 14

Our own Circuit has noted in a related context that the “IIRIRA . . . 15
eliminate[d] the requirement that all direct appeals be exhausted or waived before 16

a conviction is considered final under the statute.” Puello v. Bureau of Citizen ship & 17
Immigr

. Servs ., 511 F.3d 324, 332 (2d Cir. 2007). That case concerned whether a 1820

- 27 Brathwaite v. Garland

21 petitioner could use the earlier date of his plea as the date of his “conviction,” 1
thereby avoiding application of the IIRIRA to his petition. See id. at 3 31 (concluding 2
that “‘conviction’ refers to the date on which judgment is entered on the docket, 3

not the date on which a court accepts a guilty plea”) . The Puello court thus had no 4
occasion to resolve whether Congress had unambiguously abrogated the 5
exhaustion/waiver requirement. Accordingly, this court’s statement in Puello has 6
generally been treated as nonbinding dicta. See, e.g. , Matter of J.M. Acosta , 27 I. & 7

N. Dec. at 429 ( observing Puello “presented [one] conflicting view[] in dicta”); see 8

also Mohamed v. Sessions , 727 F. App’x 32, 34 (2d Cir. 2018) (summary order) (same) ; 9

Orabi , 738 F.3d at 542 (same); Planes , 686 F.3d at 10 39 n. 4 (9th Cir. 2012) (Reinhardt, 10
J. , dissenting from denial of reh’g en banc ) (same). Indeed , other precedential cases 11
in this Circuit have continued to assume that the INA retained the finality 12
requireme nt. See, e.g. , Adams v. Holder , 692 F.3d 91, 94 (2d Cir. 2012) (“Upon 13
realizing that the drug conviction was not final for purposes of the INA in light of 14
a pending appeal, DHS amended the Notice to Appear . . . .” (citations omitted) ); 15

Walcott v. Chertoff , 517 F.3d 149, 154 (2d Cir. 2008) (“Petitioner’s March 1996 16
conviction was not deemed final for immigration purposes until July 1, 1998, when 17
direct appellate review of it was exhausted.”) . And, in Abreu v. Holder , 378 F. App’x 1820

- 27 Brathwaite v. Garland

22 59 (2d Cir. 2010 ) ( unpublished summary order) , we remanded the issue of the 1
finality requirement to the BIA as a question of first impression. This array of 2
interpretations suggests that at least the language of the statute

— by its silence

— is 3
ambiguous. And so, despite the le gislative history , which does suggest that 4
Congress departed from Ozkok ’s definition of conviction only in order to close a 5
specific loophole that permitted noncitizens to avoid removal in the context of 6
deferred adjudications , we find some ambiguity as to just how much Congress 7
intended the term “conviction” to incorporate the longstanding finality 8
requirement. 9

C. Whether the BIA’s interpretation of “conviction” i s reasonable 10

Having determined the IIRIRA’s definition of “conviction” is ambiguous, 11
we turn to the second inquiry

— whether the BIA’s interpretation is reasonable. We 12
must defer to an agency’s “permissible construction of the statute.” Chevron , 467 13

U.S. at 843 ; see als o Oppedisano , 769 F.3d at 150 ( “ E ven where we would reach an 14
alternate interpretation de novo, we are without authority to impose it if the 15
agency’s ruling is permissible.” (internal quotation marks omitted) (quoting Xia 16
Fan Huang v. Holder , 591 F.3d 124, 129 (2d Cir. 2010)) )

. But no deference, under 17

Chevron or otherwise, is due to agency interpretations that are “arbitrary, 1820

- 27 Brathwaite v. Garland

23 capricious, or manifestly contrary to the statute.” Adams , 692 F.3d at 95 (quoting 1

Chevron , 467 U.S at 844)

. Our analysis focuses on J.M. Acosta , the precedential 2

decision on which the IJ and the BIA relied in the case before us

. 3

In J.M. Acosta , the BIA reviewed the text of Section 1101(a)(48)(A), the 4
legislative history, and traditional rules of statutory construction and concluded 5
that, “in incorporating the language of the Board’s precedent in Ozkok to define 6
the term ‘conviction,’ Congress did not intend to abandon the prior interpretation 7
regarding the finality requirement. ” 27 I. & N. Dec. at 431. W e believe that, in this 8

respe ct, t he BIA’s reading of Section 1101(a)(48)(A) is eminently reasonable

. As 9
explained, Congress derived the IIRIRA’s definition of “conviction” almost 10

verbatim from Ozkok

. See 19 I. & N. Dec

. at 552 n.7 . This is powerful evidence that 11
Congress intended to preserve the finality requirement. See Taylor , 529 U.S. at 434 12
( “When the words of [ an adjudicative body ] are used in a later statute governing 13
the same subject matter, it is respectful of Congress and of th e [ body’s ] own 14
processes to give the words the same meaning in the absence of specific direction 15
to the contrary. ” ). And the legislative history , which focuses exclusively on the 16
deferred adjudication process in explaining its modification of the Ozkok 17
definition, supports that conclusion as well

. See H.R. Conf. Rep. 104

- 828 , at 224 ; 1820

- 27 Brathwaite v. Garland

24 H.R. Rep. No. 104

- 879 , at 123

. Accordingly, we readily defer to the BIA’s 1
interpretation that, as a general matter, a conviction may not trigger deportation 2

until it is final ; that is, until appellate review is waived or exhausted. 3

D. Whether the limits imposed by the BIA in J.M. Acosta are reasonable 4

We reach a different conclusion , however, with respect to the BIA’s 5
implementation of the finality requirement. As recounted earlier , after concluding 6
that the IIRIRA requires that a conviction be final before removal, the BIA crafted 7
a specific framework governing all instances where a criminal appeal is filed late

. 8

See J.M. Acosta , 27 I. & N. Dec. at 432. 9

In these cases, once the initial time to appeal has passed, a presumption of 10
finality attaches

. Id. To rebut that presumption, the noncitizen defendant must both 11
“come forward with evidence that an appeal has been filed within the prescribed 12
deadline, including any extensions or permissive filings granted by the appellate 13

court , ” and “present evidence th at the appeal relate s to the issue of guilt or 14

innocence or concern s a substantive defect in the criminal proceedings.” Id . The 15
BIA justified this gloss on the IIRIRA by arguing that some appeals

— those 16
“relat[ing ] only to the [noncitizen’s] sentence or that seek to reduce the charges, to 17
ameliorate the conviction for rehabilitative purposes, or to alleviate immigration 1820

- 27 Brathwaite v. Garland

25 hardships”

— sh ould not affect the finality of the conviction for removal purposes. 1

Id

. at 433

. 2

It may be permissible for the BIA to establish some limits on the finality 3
requirement. After all , appeals challenging the length of a sentence or seeking 4

other relief that would alter but not overturn a defendant’s conviction

— e ven if 5

successful

— might reason ably be understood in the immigration context not to 6

render a conviction non

- final. In that context, the principal reason not to construe 7
“conviction” to mean the district court’s entry of a judgment of conviction but, 8
rather, to require finality, is the possibility that the judgment will be reversed or 9
vacated and, thus, no longer suppor t removal. Accordingly , it may be reasonable 10
to conclude that in the immigration context a conviction is not final upon entry of 11
judgment only if an appeal could yield that relief. See, e.g. , Matter of Marquez Conde , 12

27 I. & N. Dec. 251, 255 (BIA 2018) (in terpreting the IIRIRA ’s “definition of a 13
‘conviction’ to include convictions that have been vacated as a form of post

- 1420

- 27 Brathwaite v. Garland

26 conviction relief” but not those “that have been vacated based on procedural and 1
substantive defects in the underlying criminal proceeding ”). 3 2

We need not here decide whether some limits on the finality requirement 3
may appropriately be read into the IIRIRA, because we conclude that the specific 4

burden

- shifting regime and evidentiary standard demanded by the BIA to show a 5

merits

- based appe al is not reasonable. Specifically, the BIA requires a non

- citizen 6

to make a merits

- based showing at the notice stage, often before he is able to 7
review the record or identify his arguments on appeal

. The BIA points to nothing 8
in the statutory text or legi slative history indicating that this requirement reflects 9
Congressional intent. Moreover, the requirement ignores the realities of appellate 10
practice. 11

In New York , for example, a defendant may file a written notice of appeal 12
with the clerk of the criminal court within 30 days of the judgment from which an 13
appeal is sought. See NYCPL § 450.10. Or, should that initial time period expire, a 14

3 A t oral argument, Brathwaite’s counsel conceded that it would not be unreasonable for the BIA to require a petitioner to show that an appeal was merits

- based to defer identifying a “conviction,” so long as the noncitizen is afforded the opportunity to secur e counsel, review the trial record, and identify his appellate arguments before making that showing.20

- 27 Brathwaite v. Garland

27 defendant may seek the permission of an int ermediate appellate court to file a late 1
notice of appeal. See NYCPL § 460.30(1). A motion for a late notice of appeal may 2
be filed within one year and thirty days of the criminal judgment. See id

. 3

S uch late filings are a matter of course in New York. Per haps for this reason, 4

New York courts treat appeals taken by written notice of appeal and those taken 5
by a granted § 460.30 motion as identical

. See People v. Corso , 40 N.Y.2d 578, 580

– 6
81 (N.Y. 1976); see also Abreu , 378 F. App’x at 61 (“ [A] n appeal . . . pursuant to

. . . 7
§ 460.30 is equivalent to any other direct appeal

. . . . ”). 8

Once the deadline for appeal as of right has passed, however, the BIA 9
requires a respondent to offer evidence both that a timely (or timely reinstated) 10
appeal is pending and that the appeal “relates to the issue of guilt or innocence or 11

concerns a substantive defect.” Matter of J.M. Acosta , 27 I. & N. Dec. at 432. 12

Meeting this requirement at the notice of appeal stage creat es significant 13
practical problems. Most notably , t he criminal appeals process in New York 14
proceeds at a different pace than federal removal proceedings. It can take 15

considerable time for appellate counsel to be appointed f o r an indigent defendant. 16

And even when appellate counsel is appointed, counsel’s ability to identify 17

substantive defects turns on another frequently delayed process: the production 1820

- 27 Brathwaite v. Garland

28 of the criminal court record , which c a n “ take anywhere from two months to two 1

years

. ” See N .Y.C. Bar Comm

. on Crim

. Just

. Operations, Comm

. on Crim

. Advoc

. , 2

and Comm

. o n Crim. Cts

. , Delays Associated with Compiling the Record on Appeal in 3

Criminal Cases : Letter 1 (2020), https://perma.cc/6XDD

- 7D5S (detailing the various 4
obstacles to the timely receipt of the criminal court record by appellate counsel). 5
And this says nothing of the time required for counsel to review and analyze the 6

trial record once it is obtain ed

. 7

As a result, meeting the BIA’s requirement to show at the notice of appeal 8
stage that a pending appeal relates to the issue of guilt or concerns a substantive 9

defect is frequently impossible. See Garza v. Idaho , 139 S. Ct. 738, 745 (2019) 10
(observing th at, at notice of appeal stage, defendant may lack “important 11

documents from the trial court ,” and claims are “likely to be ill

- defined or 12
unknown”). And this means that noncitizen criminal defendants pursuing late

13
filed appeals risk deportation even while pursuing state

- approved challenges to 14

criminal convictions

. 15

The problem is compounded further by the BIA’s apparent evidentiary 16
requirements for showing that a late

- filed criminal appeal goes to the merits of the 17

conviction. In at least one recent, non

- precedential decision, the BIA held that a 1820

- 27 Brathwaite v. Garland

29 letter from appellate counsel describing the anticipated merits

- based grounds for 1
appeal did not satisfy the J.M. Acosta standard. See In re Mohamed Jumale , File No. 2

AXXX

- XX4

- 2 3 7, 2019 WL 7859276, at *2

- 3 (BIA Dec. 9, 2019); see also In Re: Rubben 3
Gregorio Mejia Peralta , File. No. AXXX

- XX5

- 437, 2019 WL 7168746, at *2 (BIA Sept. 4
27, 2019) (noting DHS’s argument that “an Immigration Judge cannot definitively 5

dis cern the basis of a criminal appeal until the perfected appellate filing is 6
reviewed”). It appears, then, that the BIA expects noncitizen defendants who have 7

late

- filed appeal s challenging convictions supporting their removal to submit their 8
appellate brie f filed in state court to show that th eir challenge is merit s
- based and, 9
thus, to rebut the presumption that their conviction s are final

. D oing so is 10
manifestly impossible for most criminal defendants in New York (and, likely, 11
many other states). Thus, eve n under the BIA’s own interpretation of the statute, 12
requiring some showing that a late

- filed appeal is merits

- based, the agency’s 13
demand for that showing to be made at the notice stage and, presumably, with a 14
copy of the filed appellate brief, is unreason able. 15

Brathwaite ’s own case illustrates the problems with the BIA’s finality 16
requirements

. Brathwaite was convicted on January 31, 2018, and timely moved 17
for permission to file a late appeal on February 1 5, 2019. The Appellate Division, 1820

- 27 Brathwaite v. Garland

30 First Department, granted his § 460.30 motion on May 23, 2019

. But the New York 1

court did not grant Brathwaite poor person relief, assign appellate counsel, and 2

order production of the criminal record until April 2, 2020 , nearly a year after his 3

motion to late

- file the appeal and over two years after his conviction

. People v. 4

Brathwaite , 2020 N.Y. Slip Op. 65271 (1st Dep’t Apr. 2, 2020) (unpublished order). 5
By that time , the IJ had already ordered Brathwaite removed , the BIA had affirmed 6

the IJ ’s removal order , and the appeal process before this court was well under 7

way. T he IJ , in other words , had required Brathwaite to submit evidence

— 8
presumably in the form of a perfected appellate brief

— before he had been 9
appointed appellate counsel or even received the record in his case

. 10

* * * * 11

Given that the BIA itself concluded that Congress intended to preserve the 12
finality requirement for criminal convictions, J.M. Acosta , 27 I. & N. Dec. at 431, w e 13

think “ i t is quite impossible that Congress could have intended ” this result, Catskill 14

Mountains Chapter of Trout Unlimited, Inc. v. EPA , 846 F.3d 492, 517 ( 2d Cir. 2017) 15
(quoting Pub. Citizen v. U.S. Dep’t of Justice , 491 U.S. 440, 470

- 71 (1989) (Kennedy, 16
J., concurring in the judgment)). We therefore conclude that the BIA’s 17
interpretation of the IIRIRA to require a noncitizen pursuing a late

- filed appeal to 1820

- 27 Brathwaite v. Garland

31 show the BIA that the appeal is merits

- based at the t ime the appeal is noticed and 1
by the production of a filed appellate brief is arbitrary and unreasonable. 2

CONCLUSION 3

The BIA’s burden

- shifting scheme and its accompanying evidentiary 4
requirement amounts to an unreasonable and arbitrary interpretation of t he 5

IIRIRA. We therefore GRANT Brathwaite’s petition and REMAND the matter to 6
the BIA for further proceedings consistent with this opinion. 7