Matter of Polanco

• Decision Date: 21 October 1994
• Docket Number: A-34403819,Interim Decision Number 3232
• Citation: 20 I&N Dec. 894
• Parties: MATTER OF POLANCO In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 894

MATTER OF POLANCO

In Deportation Proceedings

Interim Decision Number 3232

A-34403819

Board of Immigration Appeals

Decided by Board October 21, 1994

(1) An alien who has waived or exhausted the right to a direct appeal of a conviction is subject to deportation, and the potential for discretionary review on direct appeal will not prevent the conviction from being considered final for immigration purposes.

(2) Where an alien failed to file a timely appeal from his conviction and did not show that his request for a nunc pro tunc appeal pursuant to Rule 2:4-4(a) of the New Jersey Rules of Court had been granted, his conviction is final for immigration purposes.

CHARGE:

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

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

ON BEHALF OF RESPONDENT: Stephen A. Traylor, Esquire 20 Nassau Street, Suite 204 Princeton, New Jersey 08540-4509

ON BEHALF OF SERVICE: Jane H. Minichiello General Attorney

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

The Immigration and Naturalization Service has appealed from a decision of the immigration judge dated January 13, 1993, terminating the proceedings in this case. The appeal will be sustained and the record will be remanded to the immigration judge for further proceedings.

The respondent is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident on June 10, 1977. An Order to Show Cause and Notice of Hearing (Form I-221) alleges that he was convicted on October 3, 1991, in the New Jersey Superior Court for Passaic County, of possession of a controlled dangerous substance (cocaine) with intent to distribute within 1,000 feet of school property.

At his hearing, the respondent denied the charge of deportability on the ground that he had filed a notice of appeal from his conviction and that the conviction was therefore not final. The attorney for the Service asserted that since the appeal had not been filed until July 1992, it was untimely. She conceded that the Appellate Division of the New Jersey Superior Court had "accepted" the respondent's late appeal, although no documentation of such acceptance had been offered or admitted into evidence. However, she argued that the conviction was final, citing Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), for the propositions that a conviction is final for immigration purposes when the right to direct appellate review has been exhausted, and that the finality of a conviction is not affected by the filing of a post-conviction motion. The immigration judge determined that the respondent's conviction was on direct appeal and terminated the proceedings.

On appeal, the Service contends that the respondent's conviction is final for immigration purposes because it was not timely filed. The Government relies on the definition of the term "conviction" set forth in 8 C.F.R. § 242.2(b) (1994), which provides:

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

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

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

(3) The appeal period has lapsed.

While acknowledging that the New Jersey Rules of Court provide a procedure for allowing a nunc pro tunc appeal, the Service asserts that such an appeal is discretionary and does not affect the finality of the respondent's conviction. We find that the respondent's conviction is final and will sustain the Service's appeal.

The question of when a conviction becomes final for immigration purposes has long been problematical. See Matter of Ozkok, 19 I&N Dec. 546, 548-49 (BIA 1988). The United States Courts of Appeals have generally agreed that a conviction is not final until direct appellate review has been either exhausted or waived, but one subject to collateral attack or other modification is final. White v. INS, 17 F.3d 475 (1st Cir. 1994); Grageda v. INS, 12 F.3d 919 (9th Cir. 1993); Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981); Marino v. INS, United States Dept. of Justice, 537 F.2d 686 (2d Cir. 1976); cf. Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975) (rejecting the "direct" versus "collateral" distinction in favor of finality after entry of guilty plea and completion of sentencing), cert. denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th Cir. 1971) (concluding that a motion in arrest of judgment was in the category of a direct appeal and its pendency precluded a finding of finality).

In Morales-Alvarado v. INS, supra, the Court of Appeals for the Ninth Circuit addressed the novel question of whether immigration authorities can consider a conviction final pending a discretionary appeal, commonly referred to procedurally as a "direct appeal," to the highest court of a three-tiered state system. Noting that prior caselaw had only precluded consideration of an alien's conviction while his appeal of right was pending, the court stated that a conviction is final once the alien has exhausted the direct appeals to which he is entitled. The court next determined that discretionary review on direct appeal is more analogous to a collateral attack than to a direct appeal of right for purposes of determining finality in immigration proceedings. Thus, it concluded that an alien cannot escape deportation while awaiting the disposition of a petition for discretionary review of his conviction in a state court, or, likewise, of a petition for a writ of certiorari to the United States Supreme Court.

The dissenting judge in Morales-Alvarado preferred to draw the line of finality between direct appeals and collateral attacks, noting that the most important difference between the two categories was that direct appeals, whether of right or discretionary, must be pursued within a clearly limited period of time. He observed that collateral attacks, on the other hand, are often subject to no such restriction. For this reason, the judge concluded that it would be "unreasonable to permit the availability of a collateral attack to render a conviction non-final." Morales-Alvarado v. INS, supra, at 175 (J. Canby, dissenting); see also Aguilera-Enriquez v. INS, supra, at 571 (noting that weighing the probability of success of every post-conviction motion would hopelessly complicate the process of deportation, "which Congress intended to be simple and swift").

We concur with the reasoning of the court in Morales-Alvarado v. INS, supra. We conclude, as did the majority in that case, that an alien who has either waived or exhausted his right to a direct appeal of his conviction is subject to deportation, and that the potential for discretionary review on direct appeal will not prevent the conviction from being considered final for immigration purposes. We further find merit in the dissenting judge's observation that it would be unreasonable to delay the proceedings on the basis of the availability of post-conviction review that is not limited by any time constraints. In light of this position, we now examine the New Jersey nunc pro tunc appeal procedure.

According to Rule 2:4-1(a) of the New Jersey Rules of Court, a defendant has the right to take a direct appeal within 45 days of the entry of a final judgment. See Simmons v. Beyer, 689 F. Supp. 432, 440 (D.N.J. 1988). If he fails to file a timely appeal within that period, the Appellate Division of the Superior Court may extend the time for appeal under the nunc pro tunc appeal...