Matter of Abreu
| Decision Date | 04 May 2009 |
| Docket Number | Interim Decision No. 3641.,File A046 046 300. |
| Parties | Matter of Roberto CARDENAS ABREU, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: OSUNA, Chairman; HOLMES, FILPPU, MALPHRUS, and MULLANE, Board Members. Concurring Opinions: GRANT, Board Member; PAULEY, Board Member, joined by COLE, Board Member. Dissenting Opinion: GREER, Board Member, joined by NEAL, Vice Chairman; MILLER, HESS, ADKINS-BLANCH, and WENDTLAND, Board Members.
MALPHRUS, Board Member.
In a decision dated October 30, 2008, an Immigration Judge denied the respondent's motion to reopen his proceedings, in which he argued that his criminal conviction was not final because he had been granted permission to file a late appeal. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident on June 26, 1996. On October 11, 2007, the respondent was convicted of first degree burglary in violation of section 140.30 of the New York Penal Law.1 The record reflects that he failed to file an appeal within the 30-day deadline provided in section 460.10(1)(a) of the New York Criminal Procedure Law. The respondent was placed in removal proceedings and was charged under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted of an aggravated felony. The Immigration Judge ordered him removed in a decision dated July 22, 2008. The respondent did not appeal that decision.
In a motion dated August 15, 2008, the respondent requested that the State criminal court grant him permission to file a late appeal pursuant to section 460.30 of the New York Criminal Procedure Law. Over opposition from the State, the court granted the respondent's motion on September 26, 2008, reinstating the time for filing an appeal. The respondent filed a motion to reopen his removal proceedings on October 14, 2008, claiming that his criminal conviction was not final because he had been granted permission to file a late appeal.2 The Department of Homeland Security ("DHS") opposed the motion to reopen, arguing that the respondent's conviction remained final and valid for immigration purposes. The Immigration Judge concluded that the respondent's conviction remained a valid predicate for the charge of removability and denied the respondent's motion to reopen.
In 1996, Congress enacted section 322(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 ("IIRIRA"), which set forth a definition of the term "conviction." This definition is in section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2006), which 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—
(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.
Initially, we must "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Issues regarding whether the language is plain and unambiguous are "determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341.
The DHS argues that under the plain language of section 101(a)(48)(A) of the Act, the respondent has a conviction because the State criminal court entered "a formal judgment of guilt" on October 11, 2007. The DHS therefore contends that even if the respondent had filed a direct appeal within 30 days of his conviction, the conviction would still be valid for immigration purposes. On the other hand, the respondent essentially argues that the language of section 101(a)(48)(A) is ambiguous as to the "particular dispute in the case," id. at 340, specifically, the question of finality, and he claims that under case law that preceded the enactment of the IIRIRA, his conviction is not final for purposes of the immigration laws. It is not necessary to adopt either argument to determine the issue presented in this case.3
When Congress enacted the IIRIRA and defined the term "conviction" for the first time, it expressed a clear intent to address convictions in the deferred adjudication context. Congress was concerned that convictions in this context should not be "dependent on the vagaries of State law" and intended to prevent the various ameliorative State court proceedings from undermining the immigration consequences of a violation of State criminal laws. Matter of Punu, 22 I&N Dec. 224, 229 (BIA 1998). Congress achieved this result by adopting almost verbatim key portions of our earlier decision in Matter of Ozkok, supra, at 551-52, which set forth a standard for determining the existence of a conviction for immigration purposes. But it also expanded the Ozkok definition of a conviction by eliminating that part of the standard under which a deferred adjudication was a conviction only if a judgment of guilt could be entered "without availability of further proceedings" in which to contest the alien's guilt. Thus, Congress provided that an alien who has a deferred adjudication with a finding of guilt and a punishment, penalty, or restraint on liberty has been convicted of the offense, regardless of the potential for further ameliorative criminal proceedings to affect that determination of guilt. See Matter of Punu, supra, at 227; see also H.R. Rep. No. 104-828, at 224 (1996) (Conf. Rep.), 1996 WL 563320 ().
At the time the IIRIRA was enacted, it was well established in immigration law that a criminal conviction attains finality for immigration purposes when procedures for direct appeal have been exhausted or waived. See Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988); see also, e.g., Morales-Alvarado v. INS, 655 F.2d 172, 175 (9th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975). This well-accepted principle can be traced to the decision of the United States Supreme Court in Pino v. Landon, 349 U.S. 901 (1955). 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. See Matter of Punu, supra, at 227 ().4 With this backdrop regarding the broad context of this issue and the statute, a forceful argument can be made that Congress intended to preserve the long-standing requirement of finality for direct appeals as of right in immigration law. See Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 530-31 (1998) ().
We need not resolve that issue, however, because the case before us involves a late-reinstated appeal, not a direct appeal. At the time Congress acted in 1996, there was no understanding of the effect on finality of late-reinstated appeals similar to the well-established rule for direct appeals. The Board expressly reserved this question less than 2 years before the enactment of the IIRIRA in Matter of Polanco, 20 I&N Dec. 894 (BIA 1994), declining to decide whether late-reinstated appeals (also known as appeals taken nunc pro tunc, or "now for then") should be accorded the same treatment with regard to finality as direct appeals as of right. Thus, regardless of the strength of the argument that Congress intended to preserve the traditional treatment of direct appeals, that argument fails in the context of late-reinstated appeals because Congress could not have intended to preserve something that did not exist.5
Congress's treatment of deferred adjudication proceedings in the IIRIRA informs our approach to late-reinstated appeals because both procedures present an added measure of delay and uncertainty regarding the consequences of criminal convictions in immigration proceedings. In order to resolve the issue left open in Matter of Polanco, supra, we look first to the statute.
Section 101(a)(48)(A) of the Act provides that a conviction exists when a "formal judgment of guilt" is "entered by a court," a requirement that is satisfied here. Following the Ozkok rule in the context of deferred adjudication, Congress also determined that a conviction occurs upon an admission or finding of guilt and the imposition of "some form of punishment, penalty, or restraint on the alien's liberty." Id. However, Congress eliminated the additional part of the Ozkok rule that exempted criminal aliens with a deferred...
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