Introduction

On October 23, 2023, the Board of Immigration Appeals (“BIA”) published a precedent decision in Matter of Brathwaite, 28 I&N Dec. 757 (BIA 2023) [PDF version]. The issues in the case were related to the Board’s prior decision in Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018), which dealt with when a criminal conviction is “final” for purpose of serving as the basis of immigration removal charges that require a conviction. We recommend reading our article on J.M. Acosta [see article] before this article on Matter of Brathwaite. In Matter of Brathwaite, the Board held that an alien with a pending appeal under section 460.30 of the New York Criminal Procedure Law of a New York conviction does not yet have a “final conviction” for immigration purposes.

Important Statutes and Decisions

Let us begin by highlighting the key statutes and issues that we will discuss in this article.

The central question in the case is whether the alien respondent’s New York criminal convictions were “final” while he still had a pending appeal under section 460.30 of the New York Criminal Procedure Law.

The term “conviction” is defined for immigration purposes at INA 101(a)(48)(A) (excerpting the pertinent part for the issues we are examining): The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court…

In Matter of J-M- Acosta, which we analyzed in detail here on site, the Board held 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.” In order for the appeal to be “on the merits of the conviction,” it must relate to the defendant’s guilt or innocence or concern a substantive defect in the criminal proceedings. (See our article on Matter of Marquez Conde, 27 I&N Dec. 251 (BIA 2018) [see article] for more on the merits requirement.)

In the event that the Department establishes that the alien was convicted at trial and the period for filing a direct appeal has passed, there exists a rebuttable presumption that the conviction is final for immigration purposes.

In this case, the Board was tasked with assessing whether a case wherein an alien respondent had a pending appeal under section 460.30 of the New York Criminal Procedure Law had a “direct appeal” as understood through its interpretation of the term “conviction” in Matter of J-M- Acosta. Section 460.30 of the New York Criminal Procedure Law, which you can read here, permits defendants who want to appeal their New York convictions but failed to timely file a notice of appeal to apply for leave to appeal. Provided the defendant satisfies the relevant court that the initial failure to file a notice of appeal was on account of specified grounds in section 460.30, the court may grant the defendant permission to file a late notice of appeal.

Before continuing, please note that we are only concerned with the immigration effects of being granted permission to file a late notice of appeal under section 460.30. The procedures for appealing New York criminal convictions and the specific circumstances in which permission to file late notice of appeal may be granted are New York criminal law issues and thus outside the scope of our immigration law article. An individual (regardless of immigration status) who wants to appeal a New York criminal conviction should consult with an experienced New York criminal defense attorney.

Issue Raised

(The points in this section are discussed at Matter of Brathwaite, 28 I&N Dec. at 751-52.)

The Department of Homeland Security charged an alien as being removable under two sections:

INA 237(a)(2)(A)(ii): Convictions for two or more crimes involving moral turpitude; and
INA 237(a)(2)(A)(iii): Conviction for an aggravated felony.

The Department’s charges were based on the respondent’s multiple criminal convictions in New York. The Department alleged that the respondent had been “convicted of multiple offenses including identity theft, larceny, and possession of stolen property in violation of New York law.”

The respondent moved to terminate removal proceedings — arguing that the convictions the Department relied upon were not final for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, which defines the term “conviction” for immigration purposes. Specifically, the respondent argued that a New York court had granted his motion to leave to file a late notice of appeal under section 460.30 of the New York Criminal Procedure Law. The respondent’s position was that so long as he could pursue his appeal, his convictions were not final.

Previous Decisions

“The Immigration Judge determined that because DHS established the respondent had been convicted of the alleged offenses and the initial time for filing a direct appeal had passed, a presumption arose that the convictions were final for immigration purposes” in accordance with Matter of J-M- Acosta. Matter of Brathwaite, 28 I&N Dec. at 752. The Immigration Judge then held that notwithstanding the fact that a New York court had granted the respondent permission to file a late appeal, the respondent had not “carr[ied] his burden of rebutting the presumption [of the finality of the convictions] by producing evidence that he filed a timely appeal that relates to his guilt or innocence or concerns of a substantive defect in the criminal proceedings.” Id. That is, the Immigration Judge concluded that the respondent failed to show that he had, in a timely manner, appealed his conviction

The Board dismissed the respondent’s appeal in the first instance, agreeing with the Immigration Judge.

After losing before the Board, the respondent appealed to the United States Court of Appeals for the Second Circuit, which has Federal appellate jurisdiction over cases arising in New York, Connecticut, and Vermont. In a decision titled Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021) [PDF version], the Second Circuit disagreed with the Immigration Judge and the Board and remanded the record to the Board for further consideration.

The Board summarized the key points of the Second Circuit’s decision at pages 752-53 of its own decision:

The Second Circuit held that the Board’s interpretation of the term “conviction” in Matter of J.M. Acosta was reasonable and entitled to deference.
However, the Second Circuit held that the burden-shifting regime and evidentiary requirements described in Matter of J.M. Acosta were “unreasonable in the context of the appellate process for convictions under New York law.”
The Second Circuit explained that New York permits motions for late notice of appeal to be filed within 1 year and 30 days of the judgment of conviction. It added that late filings were common in New York and that New York courts treat section 460.30 motions identically to appeals filed by written notice.
In light of how section 460.30 motions work in practice in New York, the Second Circuit held that it was not reasonable to require the respondent to show that his or her appeal challenges the convictions on the merits at the initial stage of filing a motion under section 460.30.

The decision we are analyzing came to the Board from the Second Circuit remand.

Board’s Analysis of New York Criminal Procedure Law Section 460.30

The Board followed the Second Circuit and held that “because an appeal under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes.” Matter of Brathwaite, 28 I&N Dec. at 754. The Board explained its reasoning leading to its conclusion:

“The Second Circuit clearly stated that a motion to file a late notice of appeal under section 460.30, once accepted by the New York Court, is deemed the equivalent of a timely-filed direct appeal.” Id.
“A New York court that has granted such a motion has [] necessarily concluded that the defendant proceeded with due diligence, even if the motion was filed the maximum 1 year and 30 days after the conviction.” Id.

Thus, the Board followed the instructions provided by the Second Circuit and concluded that a conviction is not final for immigration purposes if the alien respondent was granted leave to file a late appeal under section 460.30.

The Board noted, however, that a respondent whose amenability to removal is affected by an appeal filed under section 460.30 may be removed on other grounds, if applicable: “This decision does not preclude the removal of respondents whose appeals of criminal convictions remain pending but who are removable on alternative grounds, such as overstaying a[] visa.” Id. at 755.

Limitations of Matter of Brathwaite

The Board made clear, however, that its decision is limited to appeals filed in accordance with section 460.30 of the New York Criminal Procedure Law. It proceeded to distinguish its analysis of section 460.30 from scenarios which may appear to be similar on their face.

Firstly, with respect to New York appeals, the Board emphasized that its decision with respect to section 460.30 hinged on the Second Circuit’s clarification that appeals filed under section 460.30 are classified as direct appeals under controlling precedent. It distinguished section 460.30 appeals from “discretionary appeals beyond the first appeal of right in New York.” The Board highlighted appeals described under sections 450.90, 460.10, and 460.20 of the New York Criminal Procedure Law as not being covered by its decision with respect to section 460.30.

Secondly, the Board made clear that its “holding also does not extend to other States’ criminal procedure laws.” It provided an example in the form of Matter of Polanco, 20 I&N Dec. 894 (BIA 1994) [PDF version], wherein it held that an alien who sought permission to file a late appeal under New Jersey law did have a final conviction for immigration purposes. The Board emphasized that the scenario it analyzed in Polanco was distinguishable from the statute at issue in Brathwaite.

Thirdly, the Board distinguished its ruling in Brathwaite from cases involving “deferred adjudications or post-conviction relief, including vacatures and expungements.” It highlighted its decisions in Matter of Dingus, 28 I&N Dec. 529 (BIA 2022) [PDF version], Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (discussed in our article on Marquez Conde [see article]), and Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) (referenced in our articles on Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017) [see article] and Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017) [see article]), as examines of decisions that are undisturbed by Matter of Brathwaite.

Conclusion

The Board took pains to limit the scope of its decision in Matter of Brathwaite to the specific provision for late appeals found in section 460.30 of the New York Criminal Procedure Law. However, the decision may prove to be applicable to some appellate statutes on New York that permit late appeals and classify those late appeals as direct appeals. The Board’s discussion emphasizes, however, that its decision with respect to section 460.30 is tied to the specific characteristics of the New York statute.

As a general matter, an alien facing criminal charges should seek guidance on the potential immigration outcomes of different dispositions. An alien facing removal charges should work with an experienced immigration attorney to understand the specific nature of the charges and potential options for contesting the charges or seeking relief.