Interim Decision #3232 

MATTER OF POLANCO 

In Deportation Proceedings 

A-34403819 

Decided by Board October 21, 1994 

(1) An alien who has waived or exhausted the right to a direct appeal of a conviction is 

subject to deportation, and the potential for discretionary review on direct appeal will 

not prevent the conviction from being considered final for immigration purposes. 

(2) Where an alien failed to file a timely appeal from his conviction and did not show 

that his request for a nunc pro tune appeal pursuant to Rule 2:4-4(a) of the New Jersey 

Rules of Court had been granted, his conviction is final for immigration purposes. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)I—Convicted of 

aeravated felony 

Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(i)]—Convicted of 

controlled substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Stephen A. Traylor, Esquire Jane H. Minichiello 

20 Nassau Street, Suite 204 General Attorney 

Princeton, New Jersey 08540-4509 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes, 

Alternate Board Member 

The Immigration and Naturalization Service has appealed from a 

decision of the immigration judge dated January 13, 1993, terminating 

the proceedings in this case. The appeal will be sustained and the 

record will be remanded to the immigration judge for further 

proceedings. 

The respondent is a native and citizen of the Dominican Republic 

who was admitted to the United. States as a lawful permanent resident 

on June 10, 1977. An Order to Show Cause and Notice of Hearing 

(Form 1-221) alleges that he was convicted on October 3, 1991, in the 

New Jersey Superior Court for Passaic County, of possession of a 

controlled dangerous substance (cocaine) with intent to distribute 

within 1,000 feet of school property. 

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Interim Decision #3232 

At his hearing, the respondent denied the charge of deportability on 

the ground that he had filed a notice of appeal from his conviction and 

that the conviction was therefore not fmal. The attorney for the 

Service asserted that since the appeal had not been filed until July 

1992, it was untimely. She conceded that the Appellate Division of the 

New Jersey Superior Court had "accepted" the respondent's late 

appeal, although no documentation of such acceptance had been 

offered or admitted into evidence. However, she argued that the 

conviction was final, citing Matter of Adetiba, 20 I&N Dec. 506 (BIA 

1992), for the propositions that a conviction is final for immigration 

purposes when the right to direct appellate review has been exhausted, 

and that the finality of a conviction is not affected by the filing of a 

post-conviction motion. The immigration judge determined that the 

respondent's conviction was on direct appeal and terminated the 

proceedings. 

On appeal, the Service contends that the respondent's conviction is 

final for immigration purposes because it was not timely filed. The 

Government relies on the definition of the term "conviction" set forth 

in 8 C.F.R. § 242.2(b) (1994), which provides: 

The term conviction as used in section 242(i) of the Act means that— 

(1) There Ins been a conviction by a court of competent jurisdiction; and 

(2) All direct appeal rights have been exhausted or waived; or 

(3) The appeal period has lapsed. 

While acknowledging that the New Jersey Rules of Court provide a 

procedure for allowing a nunc pro tune appeal, the Service asserts that 

such an appeal is discretionary and does not affect the finality of the 

respondent's conviction. We find that the respondent's conviction is 

final and will sustain the Service's appeal. 

The question of when a conviction becomes final for immigration 

purposes has long been problematical. See Matter of Ozkok, 19 I&N 

Dec. 546, 548-49 (BIA 1988). The United States Courts of Appeals 

have generally agreed that a conviction is not final until direct 

appellate review has been either exhausted or waived, but one subject 

to collateral attack or other modification is final. White v. INS, 17 F.3d 

475 (1st Cir_ 1994); Grageda v. INS, 12 F.3d 919 (9th Cir. 1993); 

Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990); Okabe v. 

INS, 671 F.2d 863 (5th Cir. 1982); Morales-Alvarado v. INS, 655 F.2d 

172 (9th Cir. 1981); Marino v. INS, United States Dept. of Justice, 537 

F.2d 686 (2d Cir. 1976); cf: Aguilera-Enriquez v. INS, 516 F.2d 565 

(6th Cir. 197 5) (rejecting the "direct" versus "collateral" distinction in 

favor of finality after entry of guilty plea and completion of sentencing), cert. denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th 

Cir. 1971) (concluding that a motion in arrest of judgment was in the 

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category of a direct appeal and its pendency precluded a finding of 

finality). 

In Morales-Alvarado v. INS, supra, the Court of Appeals for the 

Ninth Circuit addressed the novel question of whether immigration 

authorities can consider a conviction final pending a discretionary 

appeal, commonly referred to procedurally as a "direct appeal," to the 

highest court of a three-tiered state system. Noting that prior caselaw 

had only precluded consideration of an alien's conviction while his 

appeal of right was pending, the court stated that a conviction is final 

once the alien has exhausted the direct appeals to which he is entitled. 

The court next determined that discretionary review on direct appeal 

is more analogous to a collateral attack than to a direct appeal of right 

for purposes of determining finality in immigration proceedings. Thus, 

it concluded that an alien cannot escape deportation while awaiting 

the disposition of a petition for discretionary review of his conviction 

in a state court, or, likewise, of a petition for a writ of certiorari to the 

United States Supreme Court. 

The dissenting judge in Morales-Alvarado preferred to draw the line 

of finality between direct appeals and collateral attacks, noting that the 

most important difference between the two categories was that direct 

appeals, whether of right or discretionary, must be pursued within a 

clearly limited period of time. He observed that collateral attacks, on 

the other hand, are often subject to no such restriction. For this reason, 

the judge concluded that it would be "unreasonable to permit the 

availability of a collateral attack to render a conviction non-final." 

Morales-Alvarado v. INS, supra, at 175 (J. Canby, dissenting); see also 

Aguilera-Enriquez v. INS, supra, at 571 (noting that weighing the 

probability of success of every post -conviction motion would hopelessly complicate the process of deportation, "which Congress intended to 

be simple and swift"). 

We concur with the reasoning of the court in Morales-Alvarado v. 

INS, supra. We conclude, as did the majority in that case, that an alien 

who has either waived or exhausted his right to a direct appeal of his 

conviction is subject to deportation, and that the potential for 

discretionary review on direct appeal will not prevent the conviction 

from being considered final for immigration purposes. We further find 

merit in the dissenting judge's observation that it would be unreasonable to delay the proceedings on the basis of the availability of postconviction review that is not limited by any time constraints. In light 

of this position, we now examine the New Jersey nunc pro tunc appeal 

procedure. 

According to Rule 2:4-1(a) of the New Jersey Rules of Court, a 

defendant has the right to take a direct appeal within 45 days of the 

entry of a final judgment. See Simmons v. Beyer, 689 F. Supp. 432, 440 

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Interim Decision #3232 

(D.N.J. 1988). If he fails to file a timely appeal within that period, the 

Appellate Division of the Superior Court may extend the time for 

appeal under the nunc pro tune appeal procedure provided in Rule 

2:4-4(a).' Although the rule permits an extension of the filing period 

for a maximum of 30 days, and a showing of good cause and the 

absence of prejudice must normally be shown, the Supreme Court of 

New Jersey has ordered the Appellate Division to relax these 

requirements in the case of indigent defendants. State v. Altman, 438 

A.2d 576, 577 (N.J. Super. Ct. App. Div. 1981).2Such a defendant 

must nevertheless demonstrate that he made a timely request of his 

counsel to file an appeal on his behalf before the Appellate Division 

will grant leave to file a late appeal. Id. However, if that requirement is 

met, the court may permit the defendant to take a mine pro tune 

appeal "irrespective of the lateness of the hour." /d. 3 

Although instructed to relax the requirements of Rule 2:4-4(a) for 

indigent defendants, the Appellate Division has observed that "application[s] for leave to appeal nunc pro tune" in such cases are not 

routinely granted. State v. Edwards, 446 A.2d 1217, 1220 (NJ. Super. 

Ct. App. Div. 1982). We note in this regard that Simmons v. Beyer, 

supra, illustrates the denial of a defendant's motion for nunc pro tune 

appeal by the Appellate Division, despite a trial judge's finding that 

the required timely request for appeal to counsel had been expressed. 

It is thus evident that a motion for leave to file a notice of appeal nunc 

pro tune is discretionary in nature. 

Following the rationale of Morales-Alvarado v. INS, supra, we find 

that an alien who failed to file a timely appeal from his conviction 

under New Jersey law has a final conviction for immigration purposes, 

despite the potential for seeking a discretionary nunc pro tune appeal. 

We consider it significant that the New Jersey Rules of Court contain 

no time constraints whatsoever to limit the period during which a 

defendant can request permission to take a nunc pro tune appeal. Were 

Rule 2:4-4(a) provides as follows: 

The appellate court, upon a showing of good cause and the absence of prejudice, may 

extend the time fixed by R. 2:4 -1(a) (final judgment) , for a period not exceeding 

30 days, but only if the notice of appeal ... was in fact served and filed within the 

time as extended. 

2 In State v. Altman, supra, the court quoted a "Notice to Appellate Bar" from the 

Supreme Court of New Jersey, published at 100 N.J.LJ. 1208 (1977), which stated: 

The Supreme Court has directed the Appellate Division to relax Rule 2:4-4(a) in favor 

of allowing an out-of-time appeal nunc pro tune on behalf of an indigent criminal 

defendant in any case where it satisfactorily appears that the defendant, personally, 

within Lime, requested his trial counsel or the Public Defender's Office to file an 

appeal on his behalf. 

3The defendant in State K. Altman, supra, moved to file a notice of appeal nunc pro 

tunc almost 2 1/2 years after his conviction, and the court granted his motion. 

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Interim Decision #3232 

we to hold that a conviction under New Jersey law is not final simply 

because an alien retains the right to apply for a late appeal, his 

deportation proceedings could be postponed indefinitely by the mere 

existence of the nunc pro tune appeal procedure. We do not believe 

that Congress intended for the deportation of a convicted alien to be so 

delayed. See Aguilera-Enriquez v. INS, supra; Will v. INS, supra. 

In the case before us, the record contains a notice of appeal relating 

to the respondent, which is signed by the Public Defender and 

addressed to the Appellate Division of the Superior Court of New 

Jersey.4Although the parties to the appeal before us state that the 

respondent's nunc pro tunc appeal was "accepted" by the court, the 

notice of appeal is neither dated nor stamped by the Appellate 

Division. In any event, the significance of any such "acceptance" is 

unclear. There is no evidence, or even an allegation, that the court 

entered an order granting the respondent permission to file a late 

appeal or that such an appeal is presently under consideration. Under 

these circumstances, we find that the respondent has failed to show 

that he has been granted leave to take a nunc pro tune appeal by the 

Appellate Division. Consequently, we conclude that the respondent's 

conviction is final for purposes of supporting a deportation order. The 

appeal will accordingly be sustained and the record will be remanded 

to the immigration judge for further proceedings. 

Inasmuch as the respondent has not shown that he has been granted 

permission to take a late appeal, we need not determine what effect 

proof of a pending nunc pro tunc appeal might have on the finality of 

his conviction. 

ORDER: The appeal of the Immigration and Naturalization 

Service is sustained and the record is remanded to the immigration 

judge. 

4We note that nothing in the notice of appeal or the other documents submitted by the 

respondent indicates that he had asked counsel to submit an appeal on his behalf within 

the time for filing an appeal. We therefore question whether the respondent even met the 

requirements for seeking a late appeal. See State v. Altman, supra. 

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