Brathwaite v. Garland

• Decision Date: 01 July 2021
• Docket Number: August Term 2020,No. 20-27,20-27
• Citation: 3 F.4th 542
• Parties: Aldwin Junior BRATHWAITE, aka Aldwin Brathwaite, Aka John Thomas, aka Aldwin J. Braithwaite, aka Aldwin Junior Brathwaite Byer, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

3 F.4th 542

Aldwin Junior BRATHWAITE, aka Aldwin Brathwaite, Aka John Thomas, aka Aldwin J. Braithwaite, aka Aldwin Junior Brathwaite Byer, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.^*

No. 20-27

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: January 5, 2021

Decided: July 1, 2021

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

Keith I. Mcmanus, (Jessica E. Burns, on the brief), U.S. Department of Justice, Office of Immigration Litigation, for Brian Boynton, Assistant Attorney General, Civil Division, Washington, District of Columbia, for Respondent.

Mark Vorkink (Paul Skip Laisure, on the brief), New York, New York, for Appellate Advocates, The Legal Aid Society of Nassau County, The Office of The Appellate Defender, and The Chief Defenders Association of New York, Amici Curiae in support of Petitioner.

Before: Calabresi, Raggi, and Chin, Circuit Judges.

Calabresi, Circuit Judge:

Under the Immigration and Nationality Act ("INA"), a noncitizen may be ordered removed on the basis of a qualifying "conviction." See 8 U.S.C. § 1227(a)(2). Before 1996, the INA did not define "conviction." But for decades, federal courts and the BIA followed the principle, first set forth by the Supreme Court in Pino v. Landon , 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955), that noncitizens cannot be removed until their convictions have attained a sufficient degree of finality—that is, until direct appellate review of their convictions has been exhausted or waived. When Congress defined "conviction" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), it generally followed what courts had held "conviction" meant, but it said nothing about the well-established finality requirement. See 8 U.S.C. § 1101(a)(48)(A).

In a recent precedential decision, Matter of J.M. Acosta , 27 I. & N. Dec. 420 (BIA 2018), the BIA interpreted the IIRIRA's definition of "conviction" and reaffirmed the principle that a conviction cannot trigger deportation until direct appellate review is exhausted or waived. But the BIA put new limits on this principle. Specifically, in cases where the state's initial period for filing a direct appeal has expired, the BIA devised a burden-shifting framework: once the initial time period for filing an appeal expires, a "presumption" of finality attaches, and the noncitizen bears the burden of proving that (1) the appeal has been filed and is pending, and (2) "the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings." 27 I. & N. Dec. at 432. Under this presumption of finality, "[a]ppeals, including direct appeals, ... that do not relate to the underlying merits of the conviction will not be given effect to eliminate the finality of the conviction." Id. at 433.²

Petitioner Aldwin Junior Brathwaite ("Brathwaite" or "Petitioner") seeks review of a BIA decision ordering his removal on the basis that Brathwaite failed to offer sufficient evidence that the appeal of his criminal conviction—filed after the initial period for filing a direct appeal expired—goes to the merits of his conviction. His case raises three issues. First, whether the IIRIRA's definition of "conviction" is ambiguous. Second, if so, whether the BIA's interpretation of the statute is reasonable, that is, (a) whether the finality requirement persists; and (b) if so, whether the BIA may put limits on it. Third, and finally, whether the limits imposed by the BIA in J.M. Acosta are reasonable.

We hold that the IIRIRA's definition of "conviction" is ambiguous. We also hold that the BIA reasonably determined that the finality requirement persists. We need not determine whether the BIA may put limits on the finality requirement, however, as even assuming it may, we hold that the limitations the BIA imposed in J.M. Acosta are unreasonable. Accordingly, we VACATE the BIA's decision and REMAND this matter to the BIA for further proceedings consistent with this opinion.

BACKGROUND

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

In October 2018, while Brathwaite was incarcerated, the Department of Homeland Security ("DHS") initiated removal proceedings against him. DHS charged that Brathwaite was removable based on his conviction for aggravated felonies as defined by 8 U.S.C. § 1101(a)(43)(G), (M), (U), and for a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii).

Several months later, Brathwaite filed a motion with the First Judicial Department of the New York Appellate Division pursuant to New York Criminal Procedure Law ("NYCPL") § 460.30 for an extension of time to appeal his conviction. The Appellate Division granted his motion, "deeming the moving papers as a timely filed notice of appeal." People v. Brathwaite , 2019 N.Y. Slip Op. 71042(U), 2019 WL 2220083 (1st Dep't May 23, 2019) (unpublished order). Armed with the now timely filed notice of appeal, Brathwaite moved to terminate removal proceedings, asserting that, as his conviction was under appeal, it was not final—and, thus, not a "conviction"—for immigration purposes. DHS argued in opposition that Brathwaite's conviction was final when removal proceedings began, and that Brathwaite had failed to submit adequate evidence establishing that his appeal went to the merits.

The IJ denied Brathwaite's motion to terminate removal proceedings. In doing so, it adopted and incorporated the reasoning of the BIA's precedential decision Matter of J.M. Acosta , 27 I. & N. Dec. 420 (BIA 2018). As stated earlier, in J.M. Acosta , the BIA (a) concluded that the definition of "conviction" in the IIRIRA is ambiguous, and (b) interpreted the statute to retain the principle 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." 27 I. & N. Dec. at 432. The BIA, however, then went further. In cases where "the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction," it determined that a noncitizen's conviction should be presumed to be final. Id. To rebut this presumption of finality, the BIA held that the noncitizen must both "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" and "present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings." Id .

Applying J.M. Acosta to Brathwaite's case, the IJ held that the evidence he submitted to rebut the presumption of finality—the Appellate Division order granting Brathwaite's motion to late file his appeal—was "legally insufficient." Special App'x at 8.

Brathwaite appealed to the BIA, which issued a single-member unpublished decision dismissing the appeal. The BIA noted that at the time Brathwaite was placed in removal proceedings in October 2018, the thirty-day appeal period provided by NYCPL § 460.10(1)(a) had already passed. As a result, the BIA concluded that the IJ properly relied on J.M. Acosta to find that Brathwaite's conviction must be presumed to be final for immigration purposes. Moreover, the BIA held that Brathwaite had not carried his burden of showing non-finality. While the Appellate Division had granted him leave to file a late notice of appeal, the BIA stated that Brathwaite had not submitted evidence that established that he had perfected an appeal "relating to the issue of guilt or innocence, or concerning a substantive defect in the criminal proceedings," and had not otherwise "show[n] what argument he was pursuing" on appeal. Special App'x at 5. This timely petition for review of the BIA's decision followed.

Before this court, Brathwaite argues, inter alia , that the statutory text, history, and context of the IIRIRA establish that Congress unambiguously retained the requirement that a conviction challenged on direct appeal is not final for immigration purposes, and that the J.M. Acosta framework therefore imposes impermissible new limitations on finality. In Brathwaite's view, J.M. Acosta violates finality because it allows a conviction to become a predicate for removal before appellate review has been exhausted. He also argues that the agency's interpretation in J.M. Acosta is impermissible because it undermines the due process rights of noncitizens and interferes with the states’ ability to administer their criminal justice systems.

The Government contends that J.M. Acosta is a reasonable interpretation of an ambiguous statutory phrase, and hence, that the BIA's interpretation is entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc ., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As the Government sees it, the framework set forth in J.M. Acosta appropriately prevents noncitizen defendants from forestalling their removal while they appeal non-substantive defects in their criminal proceedings.

DISCUSSION

A. Standard of Review

Where, as here, the BIA adopts the IJ's reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the BIA's legal conclusions de novo, but we afford deference to the agency's interpretations of the INA when appropriate under Chevron . Oppedisano v. Holder , 769 F.3d 147, 150 (2d Cir. 2014). "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is...