Cite as 27 I&N Dec. 142 (BIA 2017)

Interim Decision #3906

Matter of David TAVDIDISHVILI, Respondent
Decided October 16, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Criminally negligent homicide in violation of section 125.10 of the New York Penal Law
is categorically not a crime involving moral turpitude, because it does not require that a
perpetrator have a sufficiently culpable mental state.
FOR RESPONDENT: Jon E. Garde, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Kathleen M. Zapata,

BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:

In a decision dated April 1, 2016, an Immigration Judge found the
respondent removable under sections 237(a)(2)(A)(i) and (ii) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(i) and (ii)
(2012), as an alien convicted of crimes involving moral turpitude, and
ordered him removed from the United States. The respondent has appealed
from that decision. The appeal will be sustained and the proceedings will be
terminated.
The respondent is a native and citizen of Israel who was admitted to the
United States as a lawful permanent resident on November 13, 1987. On
June 30, 1992, he was convicted of criminally negligent homicide in
violation of section 125.10 of the New York Penal Law. On February 11,
1998, he was convicted of promoting prostitution, which is a misdemeanor
under section 230.20 of the New York Penal Law. 1
Based on these convictions, the Department of Homeland Security
(“DHS”) initiated removal proceedings against the respondent and charged
him with removability under section 237(a)(2)(A)(i) of the Act, as an alien
convicted of a crime involving moral turpitude committed within 5 years
1
Although the Immigration Judge found that the respondent was convicted of violating
section 230.25 of the New York Penal Law, we take administrative notice of the contents
of his record of conviction, which indicate that he was charged under that provision but
was ultimately convicted of violating section 230.20. See 8 C.F.R. § 1003.1(d)(3)(iv)
(2017) (permitting us to take administrative notice of “the contents of official documents”).

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Interim Decision #3906

after the date of admission, and section 237(a)(2)(A)(ii), as an alien who at
any time after admission is convicted of two or more crimes involving moral
turpitude not arising out of a single scheme of criminal misconduct. The
Immigration Judge sustained both charges.
The only issue in this case is whether criminally negligent homicide under
New York law is a crime involving moral turpitude. If it is not, the
proceedings must be terminated, because neither charge of removability can
be sustained. 2 See Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA
2012).
The respondent argues that his conviction does not render him removable
because section 125.10 of the New York Penal Law punishes criminally
negligent conduct, which is not morally turpitudinous. The parties submitted
supplemental briefing on the question whether an offense that only requires
criminal negligence for conviction is a crime involving moral turpitude.
As we stated in Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017),
To determine whether the respondent’s . . . offense is a crime involving moral
turpitude under . . . the Act, we employ the “categorical approach” by “comparing
the elements of the state offense to those of the generic [definition of a crime
involving moral turpitude] to determine if there is a categorical match.” Escobar
v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017) (citations omitted). “This [approach]
requires us to focus on the minimum conduct that has a realistic probability of being
prosecuted under the statute of conviction, rather than on the facts underlying the
respondent’s particular violation of that statute.” Matter of Silva-Trevino, 26 I&N
Dec. 826, 831 (BIA 2016); see also Escobar, 846 F.3d at 1024.
“Although the immigration statutes do not specifically define offenses constituting
crimes involving moral turpitude, a crime involving moral turpitude is generally a
crime that ‘(1) is vile, base, or depraved and (2) violates accepted moral standards.’”
Escobar, 846 F.3d at 1023 (citations omitted); see also Matter of Silva-Trevino,
26 I&N Dec. at 834. (“To involve moral turpitude, a crime requires two essential
elements: reprehensible conduct and a culpable mental state.”).

Id. at 83 (alterations in original).
We have held that moral turpitude inheres in crimes involving serious
misconduct committed with at least a culpable mental state of recklessness—
2

We agree with the respondent that the DHS has not established his removability under
section 237(a)(2)(A)(i) of the Act on the basis of his misdemeanor conviction in 1998 for
promoting prostitution, because it is unclear that this offense was committed within 5 years
of his admission. See 8 C.F.R. § 1240.8(a) (2017) (providing that the DHS must prove that
a respondent is removable “by clear and convincing evidence”). Although the respondent’s
record of conviction does not establish the date he committed this offense, it does indicate
that he was convicted approximately 11 years after his admission as a lawful permanent
resident in 1987. Under section 30.10(2)(c) of the New York Criminal Procedure Law,
prosecution for a misdemeanor must generally be commenced within 2 years after the
commission of the offense.

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Interim Decision #3906

that is, “a conscious disregard of a substantial and unjustifiable risk.” Matter
of Franklin, 20 I&N Dec. 867, 870 (BIA 1994) (emphasis added) (holding
that recklessly causing the death of another person was a crime involving
moral turpitude), aff’d Franklin v. INS, 72 F.3d 571 (8th Cir. 1995). In
Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976), aff’d sub nom.
Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977), we concluded that a
person acting with this mental state could be convicted of a crime involving
moral turpitude because “recklessness requires an actual awareness of the
risk created by the criminal violator’s action”—in other words, a “violator
must show a willingness to commit the act in disregard of the perceived risk.”
Id. (emphases added).
By contrast, crimes committed with “criminal negligence” are generally
not morally turpitudinous, because neither “intent” nor a “conscious
disregard of a substantial and unjustifiable risk” is required for conviction—
that is, no sufficiently culpable mental state is necessary to commit such an
offense. Matter of Perez-Contreras, 20 I&N Dec. 615, 619 (BIA 1992)
(emphasis added); see also Sotnikau v. Lynch, 846 F.3d 731, 737 (4th Cir.
2017) (“Crimes involving criminal negligence . . . are generally excluded
from the category of crimes that involve moral turpitude.”);
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005)
(recognizing that “negligence-based crimes usually do not amount to” crimes
involving moral turpitude); Partyka v. Att’y Gen. of U.S., 417 F.3d 408, 414
(3d Cir. 2005) (stating that since “the hallmark of moral turpitude is a
reprehensible act committed with an appreciable level of consciousness or
deliberation,” the offense of negligent assault on a law enforcement officer
was not a crime involving moral turpitude because it lacked the “essential
culpability requirement”). For this reason, we held that an assault committed
with “criminal negligence” under Washington law, which occurs “when the
perpetrator ‘fails to be aware of a substantial risk that a wrongful act may
occur,’” does not involve moral turpitude. Matter of Perez-Contreras,
20 I&N Dec. at 618 (emphasis added) (quoting section 9A.08.010(1)(d) of
the Revised Code of Washington).
Section 125.10 of the New York Penal Law provides that a “person is
guilty of criminally negligent homicide when, with criminal negligence, he
causes the death of another person.” According to section 15.05(4) of the
New York Penal Law, “A person acts with criminal negligence . . . when he
fails to perceive a substantial and unjustifiable risk.” (Emphasis added.)
Thus, “criminal negligence” under New York law is indistinguishable
from the concept of “criminal negligence” we discussed in Matter of
Perez-Contreras, and it is materially distinct from the concept of
“recklessness” outlined in Matter of Franklin and Matter of Medina. For
criminal negligence, a perpetrator need only fail to perceive a substantial and
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Interim Decision #3906

unjustifiable risk, while recklessness requires that the perpetrator consciously
disregard such a risk. Because section 125.10 of the New York Penal Law
reaches offenses committed with criminal negligence—that is, offenses that
do not require a sufficiently culpable mental state—the elements of this
statute do not categorically fall within the definition of a crime involving
moral turpitude. 3 The DHS does not contend that section 125.10 is divisible
in any pertinent respect. Thus, notwithstanding the unfortunate fact that a
death resulted from the respondent’s negligent conduct, his conviction for
criminally negligent homicide under section 125.10 is not for a crime
involving moral turpitude. 4
We therefore conclude that the Immigration Judge erred in finding that
the respondent is removable under sections 237(a)(2)(A)(i) and (ii) of the
Act, and we will terminate these proceedings. In light of this conclusion,
we need not address the parties’ remaining arguments. Accordingly, the
respondent’s appeal will be sustained and the proceedings will be terminated.
ORDER: The appeal is sustained and the removal proceedings are
terminated.

3

We have determined that a sexual offense involving a minor under the age of 16, where
the age differential between the perpetrator and the victim is significant, categorically
involves moral turpitude, even if the State statute defining the offense does not require the
perpetrator to have any culpable mental state with regard to the age of the child. Matter of
Jimenez-Cedillo, 27 I&N Dec. 1, 5 (BIA 2017). However, that decision does not conflict
with our holding because the statute at issue there required a sufficiently culpable mental
state—that is, the perpetrator had to “engage in an intentional sexual act or other contact
with a minor victim.” Id. at 4 (emphasis added). Moreover, we concluded that all
violations of the statute are inherently reprehensible because they “contravene society’s
interest in protecting children from sexual exploitation.” Id. at 5.
4
We are unpersuaded by the DHS’s reliance on our holding in Matter of Wu, 27 I&N
Dec. 8 (BIA 2017). In that case, we determined that assault with a deadly weapon or force
likely to produce great bodily injury under section 245(a)(1) of the California Penal Code
is categorically a crime involving moral turpitude because a violator of that statute must
(1) “willfully engage in dangerous conduct, by means of either an object employed in a
manner likely to cause great bodily injury or force that is, in and of itself, likely to cause
such an injury”; and (2) “have knowledge, while not of the risk of causing such injury, of
the facts that make such an injury likely.” Id. at 14 (emphases added). We concluded that
there is no moral distinction between “a person who willfully commits . . . dangerous
conduct with knowledge of all the facts that make it dangerous [and] one who commits the
conduct with the knowledge that it is dangerous.” Id. However, as noted, “criminal
negligence” under New York law does not require a perpetrator to have any awareness of
the facts that make his or her conduct dangerous. Thus, it is materially distinct from “the
unique mental state embodied in section 245(a)(1)” of the California Penal Code. Id. at 15.

145


Interim Decision #1912

MATTER or Maim
In Section 212 (e) Proceedings
A-14254637
Decided by District Director June 6, 1968
An exchange alien from the Philippines has established that exceptional
hardship within the 'meaning of section 212 (e) of the Immigration and
Nationality Act would result to her 2 'U.S. citizen children since they are
too young to be separated from her and would have to accompany her
abroad; she could not accept employment abroad unless she obtained someone to care for the children, whereby they would be deprived of her special care and attention during employment hours; the husband/father, a
Filipino enlistee in the U.S. Navp, subject to military orders, could not accompany the family, thus depriving the children of his love and direction;
it would be difficult, if possible, for him to pay the family's transportation
abroad and properly maintain it there; further, Commissary and Post Exchange privileges would not be available to his family abroad.

The applicant, Mrs. Flordeliz Q. Vicedo, is a 27 -year-old native
and citizen of the Philippines. She was admitted to the United
States under her maiden name, Flordeliz M. Quimiot, as an exchange visitor on June 23, 1961 for training as a medical technologist under Program P 11 712 at St. Elizabeth Hospital in Covington, Kentucky. She transferred to St. Mary's Hospital in Long
Beach, California and continued her training under program
P—I-484 until September 1964. She married a native citizen of
the Philippines in Long Beach, California on August 8, 1964. He
bad enlisted in the Navy under a provision of an agreement between the United States and the Republic of the Philippines of
March 14, 1947, by which the United States could recruit citizens
of the Philippines for service in the United States Armed Forces.
His enlistment was in the Philippine Islands and he has never
-

-

been inspected or admitted to the United States for immigration

purposes. He is still in the United States Navy. The applicant
presently resides in Long Beach, California with her husband and
their two native United States citizen children.
If the applicant returns to the Philippines, the children would

88.

Interim Decision # 1912
have to accompany her as they are too young to be separated
from their mother. They would seriously handicap if not eliminate entirely their mother's opportunities for employment. In the
event she obtains employment, it would be necessary to hire a reliable person to care for the children during her working hours.
They would then be denied the special care and attention of their
mother during her hours of employment. The applicant's husband
is subject to military orders and would not be able to accompany
his family to the Philippines. Consequently, the children would be
deprived of his love and direction. Furthermore, in the Philippines, Commissary and Post Exchange privileges are not available to dependents when the service member is not stationed
there. It would be difficult, if possible, for the applicant's husband
to pay his family's transportation to the Philippines and properly
maintain it abroad and himself separately on his salary from the
Armed Forces.
Section 212 (e) provides, in part, as follows :
... upon the favorable recommendation of the Secretary of State, pursuant
to the request of an interested United States Government agency, or of the
Commissioner of Immigration and Naturalization after he has determined

that departure from the United States would impose exceptional hardship
upon the alien's spouse or child (if such spouse or child is a citizen of the
United States or a lawfully resident alien), the Attorney General may waive
the requirement of such two-year foreign residence abroad in the case of any
alien whose admission to the United States is found by the Attorney General
to be in the public interest .

In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement of section 212 (e) of the Immigration and Nationality Act, as amended,
would impose exceptional hardship on her United States citizen
children. The Secretary of State has reviewed the matter and has
recommended that the foreign residence requirement be waived.
It has been found that the admission of the applicant to the
United States would be in the public interest.
ORDER: It is ordered that the application of Flordeliz Q. Vicedo for a waiver of the two-year foreign residence requirement
of section 212(e) of the Immigration and Nationality Act, as
amended, be granted.

34


Interim Decision #2177

MATTER OF GALLARES

In Deportation Proceedings
A-19662566
Decided by Board December 29, 1972
The beneficiary of an approved third preference visa petition who, pending
availability of a visa number, was permitted to remain in the United States
until further notice upon the condition of retention of third preference status,
received, at most, an open-ended voluntary departure opportunity and not an
irrevocable right or privilege to remain here indefinitely. Respondent, through
his subsequent marriage to such a third preference beneficiary, could succeed
derivately to no greater rights; he remains deportable under sections 241(a)(2)
and (9) of the Immigration and Nationality Act despite his marriage.*
CHARGES:
Order: Act of 1952—Section 241(aX9) [ 8 U.S.C. 1251(a)(9)]—Failed to comply
with the conditions of nonimmigrant status—student.
Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Remained longer
than permitted as nonimmigrant student.
ON BEHALF

OF RESPONDENT:

ON BEHALF OF SERVICE:

William L. Pattillo
District Director

Dan P. Danilov, Esquire
3828 Seattle-First National
Bank Building
Seattle, Washington 98104

This matter is before the Board on what appears to be an
untimely appeal from an order of a special inquiry officer dated
September 21, 1972, finding the respondent deportable and granting him until October 22, 1972 to depart voluntarily. Present
counsel for respondent has also filed a motion to reopen and
reconsider. To avoid any question as to our jurisdiction to consider
respondent's case on the merits, we shall take the case on certification under 8 CFR 3.1(c) and enter an appropriate order.

Respondent is a 35-year-old male alien, native and citizen of the
Philippines, who was admitted to the United States on or about
June 3, 1971 as a nonimmigrant visitor for business. His nonimmigrant status was thereafter on July 15, 1971 changed to that of a
* See also, Matter of Merced, Interim Decision No. 2273 (BIA, 1974).

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Interim Decision #2177
student to permit him to. attend the Loyola University of the
South at New Orleans and he was authorized to remain here in
that status until July 15, 1972. On January 17, 1972, the Seivice's
District Director at Portland, Oregon received from respondent an

application for permission to transfer to the University of Portland. The application recited that he had last attended Loyola
University on'December 20, 1971 and was then attending Portland

University in evening classes 12 hours a week. On January 28,
1972, respondent filed an application for adjustment of status to
that of permanent resident under section 245 of the Immigration
and Nationality Act. On April 14, 1972 the District Director denied
respondent's section 245 application and, concluding that he had
violated his student status, gave him until May 14, 1972 to depart
voluntarily without the institution of deportation proceedings. He
failed to depart and an order to show cause in deportation

proceedings was issued, charging that he was deportable under
section 241(a)(9) of the Act for having failed to comply with the
conditions of his student status by accepting unauthorized employment and by transferring to the University of Portland without
Service permission. At the deportation hearing, an additional
charge was lodged under section 241(aX2) of the Act, charging that
respondent had remained longer than permitted after his section
245 application had been denied and he had been given until May
14, 1972 to depart.

The deportation hearing was held at Portland, Oregon and
respondent was there represented by Gerald H. Robinson, Esquire,
an experienced immigration lawyer. Respondent renewed his section 245 application but later withdrew it when he was unable to
establish the requisite visa eligibility. On July 18, 1972 the District
Director denied respondent's application for a one-year extension
of his temporary stay. At the deportation hearing respondent
requested reinstatement to his student status.
On September 21, 1972 the special inquiry officer entered his
order. He concluded that he lacked power to reinstate respondent

to his student status. The unauthorized employment charge was
found not sustained by the evidence. The special inquiry officer
concluded, however, that both the section 241(x)(9) charge in the
order to show cause and the lodged section 241(a)(2) charge were
sustained, finding that respondent had violated the terms of his
student status by his unauthorized transfer to the University of
Portland and had abandoned his student status when he filed his
section 245 application. The special inquiry officer granted voluntary departure to October 22, 1972, with provision for an alternate
order of deportation to the Philippines if respondent failed to
depart. A copy of the special inquiry officer's order was mailed to
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Interim Decision #2177
respondent's attorney, Mr. Robinson. No copy was sent to the
respondent. On October 16, 1972, a form letter was mailed to
respondent, notifying him that he must depart by October 22, 1972.
On October 19, 1972 the District Director extended the departure
time to October 29, 1972.
In the meantime, respondent retained his present attorney,
whose office is in Seattle, Washington. On October 25, 1972 counsel
filed with the District Director at Portland a notice of, appeal to
this Board from the special inquiry officer's decision and requested
the District Director not to execute the alternate order of deportation pending action by this Board on the appeaL The District
Director issued a warrant of deportation and directed respondent
to surrender for deportation on November 9, 1972. On November 2,
1972, counsel sent us a copy of a motion he had filed for reopening
and reconsideration. The motion, which is supported by affidavit,
recites that on September 14, 1972 respondent married Charito C.
Pedro, a native of the Philippines and a citizen of Canada, who is
the beneficiary of a third preference visa petition approved March
21, 1972. In the letter of that date notifying Miss Pedro (then
unmarried) of the approval, the District Director advised her that
as an immigrant visa was not yet available and she was therefore
ineligible to apply for section 245 adjustment, she was permitted to
remain in the United States until further notice, conditioned upon
her retention of her third preference status. The notice further
stated pro forma that the permission granted to remain in the
United States applies also to her spouse and children, if any.
The District Director opposes the appeal as untimely, citing 8
CFR 242.21. He also contends that service of the special inquiry
officer's order on Mr. Robinson, respondent's then attorney, without also serving respondent himself is sufficient to comply with
the requirements of 8 CFR 292.5. In support of his contention that
the notice of appeal should be considered as filed timely, counsel
for respondent asserts that it has been the unvarying practice of
the Service in the Portland District to serve not only the attorney
but also the alien. This contention is supported by the affidavit of
Mr. Robinson, respondent's former attorney.
Both in his notice of appeal and in his motion papers, counsel
takes the position that respondent's status has been altered by his
marriage to Miss Pedro. He argues, in effect, that as her spouse
respondent is the beneficiary of the March 21, 1972 grant of
permission to her spouse to remain here with her. In order that we
might give mature consideration to this claim, on November 7,
1972 we stayed deportation pending further order of this Board.
The record before us does not contain a transcript of the hearing
before the special inquiry officer and we have been informed that
.

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Interim Decision #2177
because of mechanical difficulty no transcript can be made. We
have concluded that we can decide the merits of the case without
it.
We need not ascertain what in fact was the unvarying practice
in the Portland District, nor need we rule on the timeliness of the
attempted appeal. In order that we may do justice to the respondent without regard to possibly difficult jurisdictional problem; we
shall take this case on certification under 8 CFR 3.1(c).
From the undisputed facts of record,. we are satisfied that
respondent's deportability has been established by clear, convincing and unequivocal evidence. We agree with the special inquiry
officer that he lacked power to reinstate respondent to his student
status, Matter of Sourbis, 11 I. & N. Dec. 335 (B IA, 1965). Indeed,
from the notice of appeal filed by present counsel, it does not
appear that deportability is seriously questioned, except in relation t9 the factors raised in the motion to reopen, which we discuss
next.
The motion to reopen asserts, in substance, that respondent's
marriage on September 21, 1972 to Charito C. Pedro "has a
substantial effect upon the Decision in this ease." We think not.
We need not determine whether, by his marriage to Miss Pedro,
respondent became automatically endowed with whatever rights
or privileges, if any, were granted to her unnamed and as -yetunascertained "spouse" by the Service's letter of March 21, 1972.

Assuming, arguendo, that on his marriage respondent succeeded
to those rights and privileges, they could not in any event exceed
those conferred on the then Miss Pedro herself. What she received
was, at most, an open-ended voluntary departure opportunity and
not an irrevocable right or privilege to remain here indefinitely.
As a nonimmigrant who had sought to become a permanent
resident under section 245, Miss Pedro had ceased to maintain her
valid nonimmigrant status and had become deportable. In approving her visa petition, the District Director informed her that she
would be permitted to remain in the United States until further

notice, pending availability of a visa number. In doing this, the
District Director conferred on her no irrevocable right or privilege
of remaining here permanently. All he did was to refrain temporarily from instituting deportation proceedings against a deportable alien, an exercise of prosecutive discretion which is committed
exclusively to the Service's enforcement officials and which neither we nor the special inquiry officers may review, Matter of
Geronimo, 13 I. & N. Dec. 680 (B IA, 1971). Approval of a visa
petition conveys no vested right to remain, Matter of Li, 13 I. & N.
Dec. 629 (BIA, 1970). The courts have endorsed our view that a

Service policy of lenity with respect to beneficiaries of approved
253

Interim Decision #2177
visa petitions confers no immutable rights generally and certainly
no enforceable right to remain here permanently, Armstrong v.
INS, 445 F.2d 1395 (C.A. 9, 1971); Vassiliou v. District Director, 461
F2d 1193 (CA. 9,1972); Discava v. INS, 339 F: Supp. 1034 (N.D. Ill.,
1972). In net effect, all that Miss Pedro obtained from the District
Director's letter of March 21, 1972 was the privilege, as a deportable alien, of departing voluntarily without the institution of deportation proceedings, with no terminal date for departure fixed as
yet. In marrying her thereafter,. respondent could succeed derivatively to no greater rights.
The special inquiry officer granted respondent the privilege of
voluntary departure, the maximum form of discretionary relief for
which he was then or is now eligible. If we restore that privilege 'to
him now, he can have no cause for complaint. We shall leave it to
the District Director to fix the departure time, taking into account
the situation of the respondent's wife and the Service's enforcement policies generally pertinent to such a situation.
ORDER: The decision of the special inquiry officer is affirmed,
insofar as concerns the adjudication of respondent's deportability.
Further orderyThe outstanding order and warrant of deportation are withdrawn, and the respondent is permitted to depart
voluntarily from the United States within such time and under
such conditions as may be fixed by the District Director; and upon
failure - of the respondent so to depart when and as directed, the
respondent shall be • deported as provided in the special inquiry
offices. order,

•254


Cite as 27 I&N Dec. 420 (BIA 2018)

Interim Decision #3934

Matter of J. M. ACOSTA, Respondent
Decided August 29, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A conviction does not attain a sufficient degree of finality for immigration purposes
until the right to direct appellate review on the merits of the conviction has been exhausted
or waived.
(2) Once the Department of Homeland Security has established that a respondent has 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 for immigration purposes, which the
respondent can rebut with evidence that an appeal has been filed within the prescribed
deadline, including any extensions or permissive filings granted by the appellate court, and
that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in
the criminal proceedings.
(3) Appeals, including direct appeals, and collateral attacks that do not relate to the
underlying merits of a conviction will not be given effect to eliminate the finality of the
conviction.
FOR RESPONDENT: Nicholas John Phillips, Esquire, Albany, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Perl, Assistant Chief
Counsel
BEFORE: Board Panel: KELLY and GREER, Board Members.
Dissenting Opinion: MALPHRUS, Board Member.

Concurring and

KELLY, Board Member:

In a decision dated August 31, 2017, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien convicted of
a crime involving moral turpitude. 1 The Immigration Judge denied the
respondent’s motion to terminate, as well as his applications for cancellation
1

The respondent was also charged under sections 237(a)(2)(A)(iii) and (B)(i) of the Act,
as an alien convicted of an aggravated felony and a controlled substance violation,
respectively. Through counsel, the respondent conceded removability based on the
controlled substance charge. The Immigration Judge did not sustain the aggravated felony
charge, but because the Department of Homeland Security has not challenged that finding
on appeal, the issue is not before us.

420

Cite as 27 I&N Dec. 420 (BIA 2018)

Interim Decision #3934

of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012),
and for a waiver of inadmissibility under former section 212(c) of the Act,
8 U.S.C. § 1182(c) (1994), and ordered him removed from the United States.
The respondent has appealed from that decision and has filed a motion to
remand based on new evidence. The Department of Homeland Security
(“DHS”) opposes both the appeal and the motion to remand. The appeal will
be dismissed in part, and the record will be remanded to the Immigration
Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic who
was admitted to the United States as a lawful permanent resident on
March 11, 1992. On May 18, 1993, he pled guilty to attempted criminal
sale of a controlled substance in the third degree in violation of section
110-220.39 of the New York Penal Law. On April 7, 2016, the respondent
pled guilty to criminal possession of a controlled substance (narcotic) in the
third degree in violation of section 220.16(12) of the New York Penal Law.
Based on the respondent’s 1993 conviction, the Immigration Judge found
him removable under section 237(a)(2)(A)(i) of the Act for having been
convicted of a crime involving moral turpitude committed within 5 years
after admission, for which a sentence of 1 year or longer may be imposed. 2
The respondent has appealed from that finding, arguing that his offense is
not a crime involving moral turpitude.
While his appeal was pending, the respondent filed a motion to remand.
In support of his motion, he submitted evidence that on October 10, 2017,
the Appellate Division of the Supreme Court for the First Judicial
Department in the County of New York granted his motion for leave to file
a late appeal of his 2016 conviction and deemed his notice of appeal to be
timely filed. The respondent argues that because a direct appeal of that
conviction is now pending, it lacks the requisite finality to qualify as a
“conviction” for immigration purposes under section 101(a)(48)(A) of the
Act, 8 U.S.C. § 1101(a)(48)(A) (2012). 3 The respondent therefore contends
2

The crime of criminal sale of a controlled substance in the third degree in violation of
section 220.39 of the New York Penal Law is a class B felony for which a sentence of
1 year or longer may be imposed. N.Y. Penal Law § 70.00 (McKinney 1993).
3
In this regard, the respondent cites Abreu v. Holder, 378 F. App’x 59 (2d Cir. 2010),
which vacated our decision in Matter of Cardenas Abreu, 24 I&N Dec. 795, 802 (BIA
2009) (en banc), where we held that a pending late-reinstated appeal granted pursuant to
New York’s late appeal procedure did not undermine the finality of the alien’s conviction.
Assuming arguendo that all direct appeals must be exhausted or waived before a conviction
becomes “final” for immigration purposes, the court held that there is no distinction

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that since his 2016 conviction does not support the controlled substance
charge, he is eligible under former section 212(c) to waive removability
based on his 1993 conviction for a crime involving moral turpitude. 4

II. CRIME INVOLVING MORAL TURPITUDE
To determine whether the respondent’s State drug offense is a crime
involving moral turpitude, we employ the categorical approach, which
requires us to “focus on the minimum conduct that has a realistic probability
of being prosecuted under the [elements of a] statute of conviction, rather
than on the facts underlying the respondent’s particular violation of that
statute,” to see whether those elements categorically “fit[] within the generic
definition of a crime involving moral turpitude.” Matter of Silva-Trevino,
26 I&N Dec. 826, 831 (BIA 2016); see also Efstathiadis v. Holder, 752 F.3d
591, 595 (2d Cir. 2014) (per curiam).
“To involve moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino,
26 I&N Dec. at 834; see also Efstathiadis, 752 F.3d at 595. Conduct is
“reprehensible” if it is “inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between persons or to society
in general.” Matter of Silva-Trevino, 26 I&N Dec. at 833 (citation omitted).
A “culpable” mental state is one that requires deliberation or consciousness,
such as specific intent, knowledge, willfulness, or recklessness. Id. at 834.
The respondent was convicted of attempted criminal sale of a controlled
substance in the third degree under New York law. Section 220.39 of the
New York Penal Law provides that a person is guilty of criminal sale “when
he knowingly and unlawfully sells” a specified controlled substance. Under
section 110.00, “[a] person is guilty of an attempt to commit a crime [under
New York law] when, with intent to commit a crime, he engages in conduct
which tends to effect the commission of such crime.” 5

between late-reinstated appeals and direct appeals under New York law. It also remanded
for us to address, in the first instance, whether section 101(a)(48)(A) of the Act is
“ambiguous with respect to the finality requirement.” Abreu, 378 F. App’x at 62.
4
Under 8 C.F.R. § 1003.2(c)(1) (2018), a motion to reopen or remand for “consideration
of an application for relief under section 212(c) of the Act . . . may be granted if the alien
demonstrates that he or she was statutorily eligible for such relief prior to the entry of the
administratively final order of deportation.”
5
For immigration purposes, there is no distinction between a substantive offense and an
attempt to commit it. See Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011) (“An attempt
involves the specific intent to commit the substantive crime, and if commission of the
substantive crime involves moral turpitude, then so does the attempt . . . .”); Matter of
Katsanis, 14 I&N Dec. 266, 269 (BIA 1973) (same).

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We have held that the Federal offense of possession of a controlled
substance with the intent to distribute is a crime involving moral turpitude
because 21 U.S.C. § 841(a)(1) (1988) requires a mental state of knowledge
or intent, and the unlawful distribution of drugs is inherently reprehensible
conduct. Matter of Khourn, 21 I&N Dec. 1041, 1045–47 (BIA 1997); see
also Matter of Gonzalez Romo, 26 I&N Dec. 743, 746–47 (BIA 2016)
(holding that solicitation to possess marijuana for sale under Arizona law is
categorically a crime involving moral turpitude); Matter of Y-, 2 I&N Dec.
600, 602 (BIA 1946) (holding that the unlawful sale of opium is a crime
involving moral turpitude, because it is an act that “creates human misery,
corruption, and moral ruin in the lives of individuals [and] is “necessarily . . .
base and shameful” (citation omitted)). Because the minimum conduct that
has a realistic probability of being prosecuted under the respondent’s State
statute of conviction necessarily involves inherently reprehensible conduct
committed with a mental state of knowledge or intent, we conclude that it is
categorically a crime involving moral turpitude. See Matter of Silva-Trevino,
26 I&N Dec. at 831.
We are unpersuaded by the respondent’s assertion that the intent in selling
a drug may not be evil, such as where the seller’s intent is to relieve another
person’s medical condition. This argument is unavailing, particularly where,
as here, a law that specifically prohibits the intentional unauthorized sale of
drugs has been enacted in order to prevent harm to the general population.
See Matter of Y-, 2 I&N Dec. at 603 (“Because so many persons become
addicts, most of the States, if not all of them, have enacted laws restricting
the right to dispense or prescribe such drugs to registered pharmacists and
physicians for medicinal purposes only and inflicting very severe penalties
for their violation.”); cf. Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA
2007) (holding that trafficking in counterfeit goods or services in violation
of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude because it
requires proof of intent to traffic and results in significant societal harm).
The respondent’s argument that his offense is not a crime involving moral
turpitude because it has no Federal analogue is also misplaced. It is not
necessary to compare a Federal statute to the respondent’s statute of
conviction because the Federal controlled substances schedules and statutes
are not controlling for purposes of determining whether a crime involves
moral turpitude. It is the respondent’s act of attempting to sell a controlled
substance that is morally turpitudinous, not the specific drug involved. See
Matter of Khourn, 21 I&N Dec. at 1047 (stating that “an evil intent is inherent
in the crime of distribution of a controlled substance”). We therefore affirm

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the Immigration Judge’s determination that the respondent is removable
under section 237(a)(2)(A)(i) of the Act. 6
We also affirm the Immigration Judge’s denial of the respondent’s
application for cancellation of removal for lawful permanent residents under
section 240A(a) of the Act. The respondent was admitted in 1992, but he
stopped accruing continuous residence about a year later in 1993, when he
was convicted of “an offense referred to in section 212(a)(2) that render[ed]
[him] . . . removable from the United States under section 237(a)(2)” of the
Act. Section 240A(d)(1) of the Act. Because the respondent cannot establish
that he has continuously resided in the United States for 7 years after being
admitted in any status, he is unable to show that he is eligible for cancellation
of removal pursuant to section 240A(a)(2) of the Act. 7

III. FINALITY OF A CONVICTION
The respondent also seeks a remand based on new evidence that he timely
appealed his 2016 State drug conviction after the New York court granted
him permission to file a late-reinstated appeal. He argues that because his
conviction is now on direct appeal, it is not sufficiently final for immigration
purposes, so it cannot serve as a predicate for his removal or disqualify him
from relief under former section 212(c) of the Act.
A. Statutory Text
We begin our analysis with the words of the statute. The term
“conviction” was statutorily defined in the Act for the first time with the
passage of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).
Section 101(a)(48)(A) of the Act provides as follows:
The term “conviction” means, with respect to an alien, a formal judgment of guilt
of the alien entered by a court or, if adjudication of guilt has been withheld, where—

6

The respondent also argues that the Immigration Judge violated his due process rights
by amending the DHS’s factual allegation for the charge of removability based on his 1993
conviction for attempted sale of a controlled substance. We disagree. The Immigration
Judge made a finding that the DHS could not show that the specific controlled substance
was cocaine under the categorical approach, to which the DHS made no objection. The
Immigration Judge therefore did not violate the respondent’s right to due process by
striking the reference to “cocaine” from the factual allegation after properly finding that
the DHS could not establish the specific substance involved.
7
In light of this disposition, we need not address the respondent’s remaining contentions
regarding his eligibility for cancellation of removal.

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(i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.

B. History of Section 101(a)(48)(A) of the Act
Prior to the passage of the IIRIRA, it was well established that a
conviction did not attain finality for immigration purposes and therefore that
the civil consequence of deportation did not attach until the alien had either
exhausted or waived the right to direct appellate review. See, e.g., White
v. INS, 17 F.3d 475, 479 (1st Cir. 1994); Martinez-Montoya v. INS, 904 F.2d
1018, 1025 (5th Cir. 1990); Morales-Alvarado v. INS, 655 F.2d 172, 174–75
(9th Cir. 1981); Marino v. INS, 537 F.2d 686, 691–92 (2d Cir. 1976);
Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975); Will v. INS, 447
F.2d 529, 532–33 (7th Cir. 1971); Matter of Thomas, 21 I&N Dec. 20, 21 n.1
(BIA 1995); Matter of Polanco, 20 I&N Dec. 894, 895–96 (BIA 1994);
Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988). This principle was
derived from the Supreme Court’s decision in Pino v. Landon, 349 U.S. 901,
901 (1955) (per curiam), in which the Court reversed the decision of the
lower court based on insufficient evidence in the record “that the conviction
has attained such finality as to support an order of deportation within the
contemplation of [former section] 241 of the Immigration and Nationality
Act, 8 U.S.C.A. § 1251 [(1952)].”
Our decision in Matter of Ozkok, 19 I&N Dec. at 551–52, which predated
the IIRIRA, set forth the prevailing standard to evaluate whether a conviction
exists for immigration purposes. Under Ozkok, we considered that a person
was convicted if “the court has adjudicated him guilty or has entered a formal
judgment of guilt.” Id. at 551. However, where adjudication of guilt was
withheld, we required all of the following elements to be present:
(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or
nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint on the
person’s liberty to be imposed (including but not limited to incarceration, probation,
a fine or restitution, or community-based sanctions such as a rehabilitation program,
a work-release or study-release program, revocation or suspension of a driver’s
license, deprivation of nonessential activities or privileges, or community service);
and
(3) a judgment or adjudication of guilt may be entered if the person violates the
terms of his probation or fails to comply with the requirements of the court’s order,
without availability of further proceedings regarding the person’s guilt or innocence
of the original charge.

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Id. at 551–52. Although the standard did not explicitly address finality, we
recognized the long-standing requirement that a conviction must have
sufficient finality to be considered a valid predicate for immigration
consequences to attach. Id. at 552 n.7 (“It is well established that a
conviction does not attain a sufficient degree of finality for immigration
purposes until direct appellate review of the conviction has been exhausted
or waived.”).
Congress’ clear reliance on Ozkok in defining the term “conviction”
indicates that it was fully aware of the precedent decisions of the Supreme
Court, the Federal circuit courts, and the Board concerning the finality
requirement. See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[W]here . . .
Congress adopts a new law incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of the interpretation given
to the incorporated law, at least insofar as it affects the new statute.”). Its
nearly verbatim adoption of the Ozkok language “is akin to reenacting a
portion of an existing statute while intending to preserve its attendant
administrative and judicial interpretations.” Matter of Cardenas Abreu,
24 I&N Dec. 795, 814 (BIA 2009) (en banc) (Greer, dissenting), vacated,
378 F. App’x 59, 62 (2d Cir. 2010); see also Alaska v. Native Vill. of Venetie
Tribal Gov’t, 522 U.S. 520, 530–31 (1998) (indicating that Congress
implicitly intends to preserve the definition of terms when it adopts language
verbatim from prior case law defining the same terms). See generally
Williams v. Taylor, 529 U.S. 420, 434 (2000) (“When the words of the Court
are used in a later statute governing the same subject matter, it is respectful
of Congress and of the Court’s own processes to give the words the same
meaning in the absence of specific direction to the contrary.”). However, we
must consider the language of the statute to determine whether it is plain and
unambiguous with respect to whether all direct appeals as of right must have
been exhausted or waived for a conviction to be sufficiently “final” for
immigration purposes. See Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997).
C. Ambiguity of the Statute
“In ascertaining the plain meaning of the statute, [we] must look to the
particular statutory language at issue, as well as the language and design of
the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988). In order to determine Congress’ intent, we may consider the overall
“object and policy” of the law and examine the legislative history.
Massachusetts v. Morash, 490 U.S. 107, 115 (1989); see also Matter of Punu,
22 I&N Dec. 224, 227 (BIA 1998).

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There is no mention of finality in the definition of a “conviction” in
section 101(a)(48)(A) of the Act. Such silence in the statutory scheme may
create ambiguity. See Barnhart v. Walton, 535 U.S. 212, 218 (2002) (“[A
statute’s] silence . . . normally creates ambiguity. It does not resolve it.”).
Congress’ silence regarding finality in section 101(a)(48)(A) clearly does
result in ambiguity.
When Congress enacted the current definition of a “conviction” at section
101(a)(48)(A), it adopted almost verbatim the language in Ozkok, except for
the third prong of the standard regarding deferred or withheld adjudications.
The legislative history of the IIRIRA reflects a clear congressional intent to
eliminate the third prong for the specific purpose of avoiding the inconsistent
outcomes that had resulted from the differing criminal procedures for
deferred adjudications among the various States. H.R. Rep. No. 104-879, at
123 (1997), 1997 WL 9288 at *123 (stating that section 101(a)(48)(A) makes
it “easier to remove criminal aliens, regardless of specific procedures in
States for deferred adjudication”); H.R. Rep. No. 104-828, at 224 (1996)
(Conf. Rep.), 1996 WL 563320 at *224 (“Joint Explanatory Statement”)
(stating that Ozkok “does not go far enough to address situations where a
judgment of guilt . . . is suspended, conditioned upon the alien’s future good
behavior”); see also Matter of Punu, 22 I&N Dec. at 227. This history does
not, however, evidence any intent to abandon the remaining law set forth in
Ozkok regarding the meaning of the term “conviction”—including the
question of finality. See Matter of Cardenas Abreu, 24 I&N Dec. at 798
(“The legislative history of the IIRIRA accompanying the adoption of the
definition of a ‘conviction’ gave no indication of an intent to disturb this
principle that an alien must waive or exhaust his direct appeal rights to have
a final conviction.”).
A proper regard for fundamental fairness leads us to expect that Congress
would be clear if its intent was to eliminate the long-standing finality
requirement regarding the right to appeal a conviction. Cf. Alim v. Gonzales,
446 F.3d 1239, 1249 (11th Cir. 2006) (stating that deeming a conviction to
be final for immigration purposes after it was “vacated on appeal (with a
judgment of acquittal entered) due to insufficient evidence” is “so foreign,
so antithetical, to the long-standing principles underlying our criminal justice
system and our notions of due process that we would expect Congress to have
spoken very clearly if it intended to effect such results”). Because it has been
silent with respect to the finality requirement, the resulting ambiguity in
section 101(a)(48)(A) of the Act suggests that Congress intended to retain
this well-established principle.
As the dissent notes, Congress preserved the finality requirement
elsewhere in the Act. See, e.g., sections 208(b)(2)(A)(ii), 237(a)(2)(D),
238(c)(3)(A)(iii), 241(b)(3)(B)(ii) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii),
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1227(a)(2)(D), 1228(c)(3)(A)(iii), 1231(b)(3)(B)(ii) (2012). However, most
of those statutes already contained finality language that was simply
carried over when the IIRIRA was enacted. See former sections 241(a)(2)(D),
242A(d)(3)(A)(iii), 243(h)(2)(B) of the Act, 8 U.S.C. §§ 1251(a)(2)(D),
1252a(d)(3)(A)(iii), 1253(h)(2)(B) (1994). Therefore, we are not persuaded
that the mention of finality in other parts of the Act and its absence in section
101(a)(48)(A) is dispositive of whether finality is required. Instead, we
regard these references to finality as clarifying language that tends to shed
light on what Congress means in the Act when it uses the term “conviction.”
This is particularly so given the history of the finality requirement and the
notable lack of any stated or apparent purpose for preserving it in some parts
of the statute and not in others. See Matter of Cardenas Abreu, 24 I&N Dec.
at 820 (Greer, dissenting) (“If Congress had intended to remove the finality
requirement under the Act, it presumably would have done so uniformly
throughout the Act, rather than leaving finality intact in other provisions
without apparent justification.”).
Thus, we do not discern any affirmative congressional intent from the fact
that Congress did not add the word “final” when it adopted the Ozkok
language verbatim in its new definition of a “conviction,” while preserving
the language of existing provisions that referenced a “final” conviction. This
situation is distinct from other circumstances where Congress has included
language in one section of a statute and omitted it elsewhere. We therefore
do not find any applicability of the “canon of statutory construction that
‘[w]here Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.’” Matter of M-H-Z-, 26 I&N Dec. 757, 761 (BIA 2016) (quoting
INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)).
Moreover, although the statute is also silent with respect to convictions
that have been vacated on the merits, we have consistently declined to strictly
interpret the language of section 101(a)(48)(A) of the Act to exclude any
exception in that regard. See, e.g., Matter of Pickering, 23 I&N Dec. 621,
624–25 (BIA 2003) (distinguishing convictions that have been set aside for
reasons related to a defect in the underlying criminal proceedings, which are
not final for immigration purposes, from those vacated because of
rehabilitation or immigration hardship), rev’d on other grounds, 465 F.3d
263, 269 (6th Cir. 2006); Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378,
1379–80 (BIA 2000) (holding that there was no basis for removability where
a criminal court order stated that the alien’s conviction was vacated based on
a legal defect). Most recently, in light of “Congress’ silence regarding
vacated convictions in section 101(a)(48)(A) of the Act,” we reiterated that
convictions vacated for procedural or substantive defects in the underlying
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criminal proceedings are not valid for immigration purposes. Matter of
Marquez Conde, 27 I&N Dec. 251, 254–55 (BIA 2018). We continue to
view the analysis in Marquez Conde, which rejected a literal reading of the
statute, as the correct interpretation.
D. Decisions of the Circuit Courts
The ambiguity in the statutory definition is highlighted by the circuit
courts’ disparate interpretations of section 101(a)(48)(A) of the Act. See
Matter of Cardenas Abreu, 24 I&N Dec. at 818 (Greer, dissenting). For
example, the United States Courts of Appeals for the Second Circuit, in
whose jurisdiction this case arises, has presented conflicting views in dicta
on whether the finality requirement survived enactment of the IIRIRA.
Compare Puello v. Bureau of Citizen. & Immigr. Servs., 511 F.3d 324, 332
(2d Cir. 2007) (“IIRIRA . . . eliminate[d] the requirement that all direct
appeals be exhausted or waived before a conviction is considered final under
the statute.”), 8 with Walcott v. Chertoff, 517 F.3d 149, 154 (2d Cir. 2008)
(accepting the Government’s argument that an alien’s “March 1996
conviction was not deemed final for immigration purposes until July 1, 1998,
when direct appellate review of it was exhausted”). Moreover, in vacating
our decision in Matter of Cardenas Abreu, the Second Circuit has invited us
to address on remand whether the finality requirement continues to exist
under section 101(a)(48)(A). See Abreu, 378 F. App’x at 62. 9
Other circuits have resolved this issue in favor of the continued vitality
of the finality requirement. In the clearest statement on the question of
finality since our publication of Matter of Cardenas Abreu, the Third Circuit
concluded that an alien’s conviction is not sufficiently final for immigration
purposes until the right to direct appellate review has been exhausted or
waived. Orabi v. U.S. Att’y Gen., 738 F.3d 535, 541–42 (3d Cir. 2014)
(“[W]e hold that the IIRIRA’s elimination of the finality requirement in the
case of deferred adjudications does not disturb the longstanding finality rule
for direct appeals recognized in Ozkok . . . .”). This is the only circuit
precedent to address the finality question in the context of a direct appeal as
a matter of right in immigration proceedings.
8

As the dissent noted in Matter of Cardenas Abreu, 24 I&N Dec. at 818–19, Puello did
not concern the appeal of a conviction. The alien entered a guilty plea and challenged the
effective date of the conviction, so that case did not involve the issue currently before us.
9
During the pendency of this appeal, the Second Circuit issued an unpublished decision
noting its “repeated[] acknowledg[ment] that Puello’s statement regarding finality was
merely dicta and that the question remains open.” Mohamed v. Sessions, 727 F. App’x 32,
34 (2d Cir. 2018). Citing a number of its prior decisions in this regard, the court stated that
its “conflicting history of the issue” made it “clear . . . that the question remains quite
unsettled.” Id.

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However, in deciding an alien’s appeal from his unlawful reentry
conviction, the Sixth Circuit concluded that the finality requirement was
preserved in the case of a direct appeal. United States v. Garcia-Echaverria,
374 F.3d 440, 445 (6th Cir. 2004) (“To support an order of deportation,
a conviction must be final. Finality requires the defendant to have
exhausted or waived his rights to direct appeal. The defendant’s exercise of
post-conviction remedies does not, however, undermine the finality of his
conviction.” (citations omitted)). In addition, while deferring to our
interpretation that a “guilty-filed disposition” under Massachusetts law fell
under the second prong of the statute, the First Circuit suggested that there
may not be a final conviction in the case of an appeal from the entry of a
formal judgment of guilt under the first prong. Griffiths v. INS, 243 F.3d 45,
53–54 (1st Cir. 2001).
In the remaining circuits that have addressed the question of finality, the
issue was not presented in the context of a direct appeal pending from a trial
court’s finding of guilt. See Planes v. Holder, 652 F.3d 991, 994–97 (9th
Cir. 2011) (addressing a situation where the alien’s appeal was from the
sentence imposed following his guilty plea, rather than from his conviction);
Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290–91 (5th Cir. 2007)
(noting that the alien’s conviction had been affirmed while on petition for
review, but stating that even though his appeal was pending at the time
of the Board’s decision, finality is no longer required); United States
v. Saenz-Gomez, 472 F.3d 791, 793–94 (10th Cir. 2007) (holding, in the
context of a sentence enhancement for illegal reentry, that where the alien’s
appeal from his aggravated felony conviction was still pending at the time of
his removal—but was later dismissed—it was final when he was removed);
Montenegro v. Ashcroft, 355 F.3d 1035, 1037–38 (7th Cir. 2004) (per
curiam) (holding that the alien’s conviction was final at the time he was
ordered removed, despite the fact that he then had two petitions pending—a
writ of certiorari and an appeal from the denial of his post-conviction
petition—both of which were later denied).
However, as we noted in Matter of Marquez Conde, 27 I&N Dec. at 253,
of the circuit courts that have addressed whether section 101(a)(48)(A) of the
Act permits an exception for convictions vacated on the legal merits, all but
the Fifth Circuit have adopted the approach we took in Matter of Pickering.
See, e.g., Andrade-Zamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016)
(citing Pickering in concluding that a “conviction will still stand for
immigration purposes despite its vacatur” if it was vacated “for a reason
unrelated to the merits of the case”); Dung Phan v. Holder, 667 F.3d 448,
452 (4th Cir. 2012) (holding that the alien’s conviction was set aside for
rehabilitative purposes, but recognizing that “[w]here a conviction is vacated

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‘based on a defect in the underlying criminal proceedings,’ the conviction is
‘no longer’” (quoting Matter of Pickering, 23 I&N Dec. at 624)).
Emphasizing Congress’ silence on the effect to be given a conviction that
has been vacated on the merits, the Eleventh Circuit found our interpretation
of the statute in Pickering to be reasonable. Alim, 446 F.3d at 1247–50.
Congress has similarly been silent with regard to the effect of a direct appeal
on an alien’s conviction. See generally Entergy Corp. v. Riverkeeper, Inc.,
556 U.S. 208, 222 (2009) (“It is eminently reasonable to conclude that [a
statute’s] silence is meant to convey nothing more than a refusal to tie the
agency’s hands . . . .”); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984) (stating that where a “statute is silent or ambiguous
with respect to the specific issue,” an agency’s interpretation should be given
deference if it is based on a permissible construction of the statute).
In view of this congressional silence and the fact that “the circuit court
decisions . . . offer conflicting statements” regarding the finality requirement,
we have a “responsibility to interpret the Act.” Matter of Cardenas Abreu,
24 I&N Dec. at 820 (Greer, dissenting). The language of section
101(a)(48)(A) of the Act is neither plain nor subject to an ordinary meaning,
and Congress’ intent regarding it is unclear. We must therefore craft a
reasonable interpretation of the language that effectuates congressional intent
as nearly as can be discerned. Matter of Punu, 22 I&N Dec. at 226 (citing
Chevron, 467 U.S. at 842–43).
We have examined the language of section 101(a)(48)(A), its legislative
history, and its relation to the design of the Act as a whole. We have also
considered the prior Federal and Board case law regarding the finality of a
conviction, of which Congress was aware when it enacted the IIRIRA. These
and our careful application of the rules of statutory construction lead us to
conclude that, in incorporating the language of the Board’s precedent in
Ozkok to define the term “conviction,” Congress did not intend to abandon
the prior interpretation regarding the finality requirement. Consequently, the
long-standing requirement that a conviction must attain sufficient finality
before immigration consequences attach has survived the enactment of the
IIRIRA. 10
10

Because we conclude that section 101(a)(48)(A) of the Act is ambiguous with respect
to whether all direct appeals must have been exhausted or waived for a conviction to be
final for immigration purposes, our construction of the statute is entitled to deference so
long as our interpretation is reasonable, at least in the Second Circuit, which has not directly
addressed the finality issue. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps
an agency construction otherwise entitled to Chevron deference only if the prior court
decision holds that its construction follows from the unambiguous terms of the statute and
thus leaves no room for agency discretion.”); see also Chevron, 467 U.S. at 843.

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E. Requirements for Finality of a Conviction
In holding that the finality requirement continues to apply after the
enactment of the IIRIRA, we emphasize that a conviction does not attain a
sufficient degree of finality for immigration purposes until the right to direct
appellate review on the merits of the conviction has been exhausted or
waived. 11 Consequently, absent proof of a waiver of appeal rights, a
conviction does not achieve finality for immigration purposes until the time
for filing an initial direct appeal has expired under the laws of the applicable
jurisdiction. However, once the DHS has established that a respondent has
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 for
immigration purposes.
To rebut that presumption, a respondent must come forward with
evidence that an appeal has been filed within the prescribed deadline,
including any extensions or permissive filings granted by the appellate
court. 12 He or she must also present evidence that the appeal relates to the
issue of guilt or innocence or concerns a substantive defect in the criminal
proceedings. See Matter of Marquez Conde, 27 I&N Dec. at 255 (reaffirming
Matter of Pickering and reiterating that “convictions that have been vacated
based on procedural and substantive defects in the underlying criminal
proceeding [are] no longer valid for immigration purposes”); see also Matter
of Rodriguez-Ruiz, 22 I&N Dec. at 1379–80 (giving effect to the alien’s
vacated conviction where there was evidence by way of a court order that the
conviction was vacated on the legal merits of the underlying criminal
proceedings).
11

A review of State law regarding filing deadlines for direct appeals reveals that, currently,
the deadlines for direct appeals vary in 49 States between 20 and 90 days after entry of a
final judgment or order.
12
Under the current criminal procedure rules in many jurisdictions, within a short period
of time after conviction, a defendant may seek some form of late-filed appeal beyond the
initial period for filing a direct appeal as of right. See, e.g., Ariz. R. Crim. P. 31.3 (allowing
the Arizona appellate courts to suspend the 20-day filing deadline for good cause shown);
N.J. Ct. R. 2:4-4(a) (allowing the New Jersey appellate courts to extend the 45-day filing
deadline by not more than 30 days upon a showing of good cause and the absence of
prejudice); Mass. R. App. P. 4(c) (allowing Massachusetts lower courts to extend the
30-day time to file a notice of appeal upon a “showing of excusable neglect”), 14(b) (giving
appellate courts authority to “enlarge the time” for filing an appeal to 1 year “for good
cause shown”); Tenn. R. App. P. 4(a) (stating that “in all criminal cases the ‘notice of
appeal’ document is not jurisdictional and the timely filing of such document may be
waived in the interest of justice”). Eighteen jurisdictions provide for an automatic waiver
of the appeal if the defendant fails to timely file a direct appeal of a criminal conviction.

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Appeals, including direct appeals, and collateral attacks that do not relate
to the underlying merits of the conviction will not be given effect to eliminate
the finality of the conviction. Such appeals include those that relate only to
the alien’s sentence or that seek to reduce the charges, to ameliorate the
conviction for rehabilitative purposes, or to alleviate immigration hardships,
and any other appeals that do not challenge the merits of the conviction. See
Matter of Roldan, 22 I&N Dec. 512, 521–24 (BIA 1999) (holding that under
the statutory definition of a “conviction” in section 101(a)(48)(A) of the Act,
no effect is to be given in immigration proceedings to a State action that
purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove
a guilty plea or other record of guilt or conviction by operation of a State
rehabilitative statute); see also Matter of Pickering, 23 I&N Dec. at 624–25
(holding that a conviction set aside for reasons solely related to
post-conviction events such as rehabilitation or immigration hardships will
remain a conviction for immigration purposes). 13
In this case, the respondent submitted evidence indicating that he filed a
motion for an extension of the appeal deadline and that the motion was
granted and the appeal was permitted by the New York appellate court. 14
Under these circumstances, we will remand this case to the Immigration
Judge to consider the status of the pending appeal and its basis and to
determine whether a continuance may be appropriate. See Matter of
L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018). In this regard, the respondent
and the DHS should be given an opportunity to present any additional
documentary and testimonial evidence they wish to offer in assisting the
Immigration Judge.
Accordingly, the appeal from the Immigration Judge’s determination that
the respondent is removable under section 237(a)(2)(A)(i) of the Act and
from his denial of the respondent’s application for cancellation of removal
under section 240A(a) of the Act will be dismissed. The respondent’s motion
to remand based on new evidence will be granted.

13

The rationale underlying this position is that such challenges do not comport with
congressional intent regarding the definition of a “conviction” in the Act. See Matter of
Pickering, 23 I&N Dec. at 623; Matter of Roldan, 22 I&N Dec. at 521.
14
The respondent submitted this motion pursuant to section 460.30 of the New York
Criminal Procedure Law, which sets forth the circumstances under which appeals filed
beyond the deadline proscribed in section 460.10 will be granted and treated as direct
appeals as of right. These circumstances include improper conduct by a public servant or
the defendant’s attorney, the death or disability of the attorney, or the inability of an
incarcerated defendant to communicate with an attorney regarding the appeal through no
lack of due diligence or fault of the attorney or the defendant.

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ORDER: The appeal is dismissed in part and the motion to remand is
granted.

FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
CONCURRING AND DISSENTING OPINION: Garry D. Malphrus,
Board Member
I concur with the majority’s determination that the respondent is
removable as charged under section 237(a)(2)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), as an alien convicted of
a crime involving moral turpitude. However, I would dismiss the appeal and
not remand because I cannot agree with the majority’s treatment of the
finality issue. The plain language of the definition of the term “conviction”
at section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2012), does
not require that appeals be exhausted or waived for a conviction to be final
for immigration purposes.
I agree with the majority that, prior to the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), the Board and
Federal courts had long held that a conviction only became final for
immigration purposes once direct appellate review had been exhausted or
waived. See Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988); see
also Matter of Polanco, 20 I&N Dec. 894, 895–96 (BIA 1994) (collecting
cases). However, as part of the IIRIRA, Congress for the first time created a
statutory definition of the term “conviction.” IIRIRA § 322(a)(1), 110 Stat.
at 3009-628 to 3009-629. Specifically, the Act provides that the “term
‘conviction’ means, with respect to an alien, a formal judgment of guilt of
the alien entered by a court.” Section 101(a)(48)(A) of the Act. 1
We have a duty to follow the plain and unambiguous language of the
statute, and section 101(a)(48)(A) is not ambiguous. See K Mart Corp.
v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“If the statute is clear and
unambiguous ‘that is the end of the matter, for the court, as well as
the agency, must give effect to the unambiguously expressed intent
of Congress.’” (citation omitted)). The part of the definition at issue here
only requires “a formal judgment of guilt . . . entered by a court.” Section
1

The remaining portion of this definition, which pertains to circumstances where an
“adjudication of guilt has been withheld,” is inapplicable here. See section 101(a)(48)(A)
of the Act.

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101(a)(48)(A) of the Act. The statute requires a “formal” judgment, not a
“final” judgment, and it makes no reference to a conviction being “final.” 2
In addition, the use of the term “conviction” in itself does not implicitly
denote the existence of such a requirement. See Deal v. United States, 508
U.S. 129, 131 (1993) (“[T]he word ‘conviction’ can mean either the finding
of guilt or the entry of a final judgment on that finding.”). Thus, in looking
to the plain language of the statute, there is simply no requirement that all
appeals must be exhausted or waived before a conviction is final for
immigration purposes. See Planes v. Holder, 652 F.3d 991, 996–97 (9th Cir.
2011). 3
The majority states that Congress did not intend to alter the judicial and
administrative interpretations regarding the finality of a conviction when it
adopted a definition of a “conviction” for the first time in the Act. However,
the plain language of section 101(a)(48)(A) evidences Congress’ intent.
Although there is a general rule of statutory construction that Congress
intends to incorporate well-settled judicial and administrative interpretations
into a statute when it reenacts an existing statute without changes, see, e.g.,
Bragdon v. Abbott, 524 U.S. 624, 644–45 (1998), that rule is not applicable
here. In adding section 101(a)(48)(A) to the Act, Congress was not
reenacting an existing statute. Instead, it was adopting a definition of
“conviction” for the first time.
The majority cites to Alaska v. Native Village of Venetie Tribal
Government, 522 U.S. 520 (1998), to support its view that this rule should
be applied to judicial interpretations when Congress adopts a definition for
the first time. However, that case involved a situation far different from the
one before us. The legislative history of the statute at issue there explicitly
stated that Congress intended to adopt the Supreme Court’s definition of the
term “Indian country” verbatim. Id. at 530 (stating that the statute’s
2

In the Federal criminal context, “[t]he sentence is the judgment,” and thus a “formal
judgment of guilt” is entered at the time a court imposes a sentence. Burton v. Stewart,
549 U.S. 147, 156 (2007) (per curiam) (citation omitted); Johnson v. United States, 623
F.3d 41, 45 (2d Cir. 2010) (noting that the terms “sentence” and “judgment” “are often
used interchangeably”); Black’s Law Dictionary (10th ed. 2014) (defining “sentence” as
“[t]he judgment that a court formally pronounces after finding a criminal defendant
guilty; . . . [a]lso termed judgment of conviction”). Thus, Congress’ use of the term “formal
judgment” in section 101(a)(48)(A) indicates that it intended such a judgment to be a
“conviction” for immigration purposes, even if it had not attained finality.
3
It is significant, moreover, that Congress defined the term “conviction” by saying what
it “means,” rather than what it “includes.” Unlike the term “includes,” which “is usually a
term of enlargement,” the word “means” limits the scope of a statutory definition.
Burgess v. United States, 553 U.S. 124, 131 n.3 (2008); see also Matter of Cardenas Abreu,
24 I&N Dec. 795, 805 (BIA 2009) (en banc) (Pauley, concurring), vacated, 378 F. App’x
59 (2d Cir. 2010).

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“definition of Indian country is based on [the] latest construction of the term
by the United States Supreme Court” (citation omitted) (internal quotation
mark omitted)).
In our case, the pertinent legislative history is silent regarding finality.
Furthermore, Congress did not adopt those prior interpretations verbatim.
When Congress defined the term “conviction” for the first time in the Act, it
significantly modified the Board’s definition in Matter of Ozkok, 19 I&N
Dec. at 551–52, rejecting that case’s approach to deferred adjudications. See
Matter of Cardenas Abreu, 24 I&N Dec. 795, 805 (BIA 2009) (en banc)
(Pauley, concurring), vacated, 378 F. App’x 59 (2d Cir. 2010). We cannot
assume that Congress deferred to our interpretation when it enacted section
101(a)(48)(A). Nor may we read a finality requirement into a provision that
is not there. See Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th
Cir. 2012) (“When Congress legislates on a clean slate, it need not explicitly
abrogate every related policy put in place by an agency.”). 4
Moreover, looking to the “broader context of the statute as a whole,”
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997), other sections of the
Act indicate that the majority’s approach is not the correct interpretation.
Although Congress did not use the term “final” in section 101(a)(48)(A) of
the Act, it has included that term in other provisions of the Act. For example,
Congress provided for the removal of nonviolent offenders who are
imprisoned and subject to a “final conviction” in section 241(a)(4)(B)(i) of
the Act, 8 U.S.C. § 1231(a)(4)(B)(i) (2012) (emphasis added). It likewise
4
This situation is analogous to how the circuit courts have determined that Congress
abrogated the departure bar regulations at 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1)
(2018)—namely, by enacting new legislation that conflicted with the prior administrative
interpretation. Specifically, when Congress enacted section 240(c)(7)(A) of the Act,
8 U.S.C. § 1229a(c)(7)(A) (2012), it adopted language from prior regulations that gave
aliens the right to file one motion to reopen, but it declined to adopt language from those
regulations indicating that a motion was automatically withdrawn upon an alien’s departure
from the United States. After concluding that the departure bar regulations conflict with
the plain language of the newly enacted section 240(c)(7)(A), most circuit courts have held
that the administrative interpretation embodied in the prior regulations did not survive
the enactment of the IIRIRA. See Toor v. Lynch, 789 F.3d 1055, 1061 (9th Cir. 2015)
(“Congress was undoubtedly aware of the pre-existing regulatory post-departure bar. . . .
[T]herefore, the ‘proper inference’ is that Congress considered whether to bar motions to
reopen . . . from noncitizens who had departed the United States, and chose not to do
so.” (citation omitted) (internal quotation mark omitted)); Santana v. Holder, 731 F.3d 50,
58–59 (1st Cir. 2013); Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012); Lin
v. U.S. Att’y Gen., 681 F.3d 1236, 1241 (11th Cir. 2012); Contreras-Bocanegra, 678 F.3d
at 819; Prestol Espinal v. Att’y Gen., 653 F.3d 213, 217–18 (3d Cir. 2011); William
v. Gonzales, 499 F.3d 329, 333–34 (4th Cir. 2007). If the departure bar did not survive the
enactment of the IIRIRA, it is not reasonable to conclude that our prior interpretation
regarding finality survived the enactment of section 101(a)(48)(A) of the Act.

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provided at section 237(a)(2)(D) that an “alien who at any time has been
convicted (the judgment on such conviction becoming final) of, or has been
so convicted of a conspiracy or attempt to violate” certain national security
statutes is deportable. (Emphasis added.) Additionally, an alien is ineligible
for asylum and withholding of removal under the Act if that alien is
“convicted by a final judgment of a particularly serious crime.” Sections
208(b)(2)(A)(ii), 241(b)(3)(B)(ii) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(ii),
1231(b)(3)(B)(ii) (2012) (emphasis added).
The inclusion of the term “final” in the above provisions, and its
exclusion from section 101(a)(48)(A), indicates that Congress did not intend
for a “conviction” to be final before it has immigration consequences.
“[W]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (alteration
in original) (citation omitted); see also Jama v. ICE, 543 U.S. 335, 341 (2005)
(“We do not lightly assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply, and our reluctance is even
greater when Congress has shown elsewhere in the same statute that it knows
how to make such a requirement manifest.”); Matter of M-H-Z-, 26 I&N
Dec. 757, 761 (BIA 2016). The majority’s contrary conclusion—that the
inclusion of the word “final” in other sections of the Act to describe a
“conviction,” and its exclusion from section 101(a)(48)(A), implies that the
latter contains a finality requirement—turns this long-standing canon of
statutory interpretation on its head. 5
The majority effectively concedes that its result is not based on the plain
language of the statute. Rather, it regards congressional silence, legislative
history and prior judicial interpretations as providing support for its finding
that the statute is ambiguous. However, based on long-standing principles
of statutory construction, we have a duty to first assess whether the language
of the statute is clear and unambiguous, and if it is, we must follow that
language as long as it would not lead to an absurd or bizarre result. FDA
5

Further, although the regulations do not contain a provision that addresses the term
“conviction” in the context of removal proceedings under section 240 of the Act, they
support the argument that finality is not required in our case. For instance, by regulation,
an alien who is subject to expedited removal must have been “convicted (as defined in
section 101(a)(48)(A) . . .) of an aggravated felony and such conviction has become final.”
8 C.F.R. § 1238.1(b)(iii) (2018) (emphasis added). “If the definition of a ‘conviction’
enacted by the IIRIRA bore the understanding . . . that a conviction must have attained
finality, it would have been unnecessary for the regulation to specify that the conviction
must have become final.” Matter of Cardenas Abreu, 24 I&N Dec. at 807 (Pauley,
concurring).

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v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); Demarest
v. Manspeaker, 498 U.S. 184, 191 (1991). 6 Section 101(a)(48)(A) is
unambiguous on its face, and no circuit court has held that applying the plain
and unambiguous language of that provision would lead to absurd results.
See, e.g., Planes, 652 F.3d at 996 (collecting cases holding that the plain
language of section 101(a)(48)(A) “requires only that the trial court enter a
formal judgment of guilt, without any requirement that all direct appeals be
exhausted or waived”).
In this case, no absurd results would ensue from applying the plain
language of this provision. The respondent, who was detained below and
remains detained on appeal, was ordered removed, based in part on a
conviction that was clearly final during his removal hearing. While his case
was pending before us on appeal, he filed a motion for a late-reinstated appeal
in State court, which was granted. Also, contrary to the majority’s
implication, no fundamental unfairness would ensue. If the respondent’s
conviction is reversed by the State court, it will no longer be valid for
immigration purposes. See, e.g., Matter of Marquez Conde, 27 I&N Dec.
251, 255 (BIA 2018) (holding that “convictions that have been vacated based
on procedural and substantive defects in the underlying criminal proceeding
[are] no longer valid for immigration purposes”). Thus, any unfairness that
may ensue from ordering the respondent removed based on his conviction
now could be remedied if he successfully overturns his conviction before the
State court. This is one reason why the Department of Homeland Security
(“DHS”) might choose for policy or prudential reasons not to proceed with
removal proceedings until direct appeals have been exhausted.
The approach that I would take is consistent with the clear majority of
circuit courts that have addressed finality in the immigration context. Several
courts have expressly held that the judicially created finality requirement has
been superseded by the IIRIRA, based on the plain language of the Act, and
that a conviction exists for immigration purposes, even if a direct appeal is
pending in criminal court. See Planes, 652 F.3d at 994–96; United States
v. Saenz-Gomez, 472 F.3d 791, 794 (10th Cir. 2007) (holding that “the literal
language of [section 101(a)(48)(A)] controls” the meaning of “conviction”
and declining to read a finality requirement into that provision “[b]ecause the
plain language of [the statute] is clear and does not lead to an irrational
result”); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per
6

Notably, the facts of Demarest are supportive of the reasoning and result of this dissent.
In that case, the Supreme Court applied the plain language of the statute to find that State
prisoners who testified at Federal trials pursuant to a writ of habeas corpus in 18 U.S.C.
§ 1821 (1988) were entitled to witness fees, rejecting long-standing administrative and
judicial interpretations to the contrary.

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curiam) (holding that the “IIRIRA eliminated the finality requirement for a
conviction”). 7
The majority attempts to distinguish this authority by stating that these
decisions could have been decided on narrower grounds. However, circuit
courts, as well as the Board, render published decisions where the holding is
arguably broader than necessary to resolve the case at hand, and even where
that is true, it does not turn a holding into dicta. Moreover, the distinctions
cited by the majority have no bearing on the express holdings in those
decisions that the finality requirement did not survive the enactment of the
IIRIRA and that a conviction exists for immigration purposes, even if it is
pending on direct appeal.
Some circuits have indicated in dicta that the finality rule did not survive
the enactment of the IIRIRA. See Moosa v. INS, 171 F.3d 994, 1009 (5th
Cir. 1999) (“There is no indication that the finality requirement imposed . . .
prior to 1996 . . . survives the new definition of ‘conviction’ found in IIRIRA
. . . .”); see also Griffiths v. INS, 243 F.3d 45, 49–51 (1st Cir. 2001) (reserving
the question but citing Moosa approvingly). Most relevant here, the United
States Court of Appeals for the Second Circuit, in whose jurisdiction this
case arises, has stated in dicta that the IIRIRA “eliminate[d] the requirement
that all direct appeals be exhausted or waived before a conviction is
considered final under the statute.” Puello v. Bureau of Citizen. & Immigr.
Servs., 511 F.3d 324, 332 (2d Cir. 2007). But see Walcott v. Chertoff, 517
F.3d 149, 154 (2d Cir. 2008) (accepting the DHS’s argument that an alien’s
“March 1996 conviction was not deemed final for immigration purposes until
July 1, 1998, when direct appellate review of it was exhausted”). 8 8 The
majority attempts to distinguish these cases, but the distinctions it draws are
irrelevant to how these courts treated the finality issue. 9 The majority’s
creative discussion of the circuit court decisions that have addressed the
7

In these circuits, the majority’s interpretation of the term “conviction” in section
101(a)(48)(A) will not be entitled to deference because these circuits relied on the plain
language of the statute. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005).
8
The majority notes that a divided panel of the Second Circuit recently stated in an
unpublished decision that the question “remains open” whether the finality requirement
continues to apply after the enactment of the IIRIRA and remanded for us to consider the
issue. Mohamed v. Sessions, 727 F. App’x 32, 34 (2d Cir. 2018). By contrast, the dissent
would not have remanded and would have held that the plain language of section
101(a)(48)(A) eliminated the finality requirement. Id. at 34–35 (Sullivan, J., dissenting).
9
The majority cites to United States v. Garcia-Echaverria, 374 F.3d 440 (6th Cir. 2004),
as an example of how the Sixth Circuit has preserved the finality requirement. Although
the Sixth Circuit concluded in dicta that convictions must be “final,” it based this
conclusion on the law prior to the IIRIRA, rather than the statutory definition of a
“conviction” at section 101(a)(48)(A). Id. at 445.

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finality issue gives the appearance that there is much more uncertainty within
circuits on this issue than there actually is.
The only circuit that has held that the finality requirement survived
the enactment of the IIRIRA is the Third Circuit. See Orabi v. U.S. Att’y
Gen., 738 F.3d 535, 540–41 (3d Cir. 2014). There the court relied primarily
on legislative history discussing Congress’ attempt to modify the Board’s
approach to deferred adjudications. However, as noted, this legislative
history is silent with respect to the issue before us. See Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 862 (1984) (declining to find
that legislative history illuminates congressional intent where that history is
either silent or ambiguous on the issue); see also Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“Extrinsic materials
have a role in statutory interpretation only to the extent they shed a reliable
light on the enacting Legislature’s understanding of otherwise ambiguous
terms.”). For this reason, the legislative history does not resolve whether
section 101(a)(48)(A) contains a finality requirement.
Based on the plain language of the Act and the clear weight of authority
in the circuit courts, I would conclude that “the first definition of ‘conviction’
in § [101](a)(48)(A) requires only that the trial court enter a formal
judgment of guilt, without any requirement that all direct appeals be
exhausted or waived.” Planes, 652 F.3d at 996. The majority errs by
invoking congressional silence to convert the otherwise plain language at
issue here into statutory ambiguity, thereby giving us license to resolve the
ambiguity in the manner that we think is best. “Regardless of our view on
the wisdom or efficacy of Congress’s policy choices, we are not free to read
in additional elements where the legislature has declined to include them.”
Id. (citing Jones v. Bock, 549 U.S. 199, 216–17 (2007)).
I therefore respectfully dissent from the majority’s decision to remand
this case for further proceedings. I would deny the respondent’s motion to
remand because the new evidence does not indicate that his conviction has
been overturned or vacated, and he remains ineligible for relief under former
section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See Matter of Coelho,
20 I&N Dec. 464 (BIA 1992).

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