We live in a time when big bore becomes small bore.

Sunday, September 2nd, 2018
By: Jonathan MontagJ.D.

We live in a time, immigration-wise and to a great extent, everything-wise, where there is so much big news that what would have been considered big news is now not even covered. Outside of immigration news, take, for example, the news this week that the United States is withdrawing its funding to UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East), the UNHCR (United Nations High Commissioner for Refugees) for Palestinians. In a normal news work, we’d be hearing about this sixty-nine year old organization and its role in the Middle East and the world. We might even hear a little in the (American) news about the P-word – Palestinians. Instead, because of all the other craziness, and funerals, we heard virtually nothing.

Similarly, on the immigration front, in a week where the Board of Immigration Appeals ruled in the Pereira matter, discussed here, against an expansive view that vast numbers of immigration court cases were improvidently commenced; where a Texas federal district court decided not to halt DACA  against the consensus view that he would halt it; and of course, the separated children, and the rocket dockets for illegal entry prosecutions, a new Board of Immigration Appeals case, Matter of J.M. Acosta (no, not named after the CNN White House correspondent, but perhaps named with the J.M. initials to distinguish it from the seminal asylum case, Matter of Acosta), about the definition of conviction came out. It is pretty big news and deserves attention with the BIA holding 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.”

The issue in the case is not new. In fact, I blogged about it in 2012,  discussing the Ninth Circuit decision in Planes v. Holder. The question was whether a person can be removed based on a criminal offense while the criminal case is on direct appeal. In Planes, the Ninth Circuit dealt with a case where an alien was challenging the sentence he received on appeal. As I discussed in the 2012 blog article, instead of limiting the decision to whether a conviction is final when the sentence is being appealed, the Ninth Circuit broadly asserted that even when the direct appeal is about the criminal conviction itself, the conviction is final-enough to serve as the basis of a removal order. The issue centers on interpreting the meaning of the conviction statute, INA § 101(a)(48) , which states:

(A) 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.

Because Congress did not qualify the definition with verbiage about finality and the affect of a direct appeal on finality, the Planes court and many others concluded that the usual rule and long-standing view in immigration law that a conviction is not final until direct appeals are waived or exhausted does not apply to immigration law.

The acceptance of this view arguably ignored rules of statutory construction about terms (like the term “conviction” in these cases) in new statutes inheriting old interpretations of them, as discussed in Planes and Matter of J.M. Acosta. Also ignored were some of the absurd consequences of considering a conviction on appeal final-enough to order removal. The BIA acknowledged in other decisions that if an appeal is successful on the merits of the conviction (rather than a conviction being vacated simply to ward off removal), then it no longer serves as a basis for removability. So, in effect, an alien, who often is detained in criminal-conviction cases, is compelled to remain detained for months and years while striving to stay his removal through appeals while waiting for the appellate criminal court to decide the appeal. Should his ability to prolong the immigration case be exhausted or the alien’s will to sit in detention while the appeals of the immigration and criminal cases are pending, which can take months or years, the alien can be deported based on a conviction that could be reversed on appeal. It also puts attorneys representing aliens in the ethical quandary of filing an appeal in an immigration case for the purpose of delaying removal. Should the non-citizen be deported and then have his conviction reversed, getting him back after deportation is facially impossible under the immigration regulation at 8 C.F.R. § 1003.2(d), which states:

A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

As discussed in the dissent in Planes, it is also practically very difficult. You can bet that an agency, ICE, that lacks procedures for linking parents and their babies after deportation of the parent, also lacks procedures to bring back people it has deported.

Matter of J.M. Acosta reversed all this nonsense, holding essentially that it ain’t final till its final.

Here we have a unique situation where the BIA is “reversing” appellate courts’ harsh decisions about convictions and finality. The next question is whether this is big-bore enough for the Attorney General to intervene, or will J.M. Acosta be the final law of the land? Posted September 2, 2018.


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