JM Acosta and Immigration Definition of "Conviction"

Introduction

Many removal provisions for criminal violations require a criminal conviction [see category]. In 2018, the Board of Immigration Appeals (“BIA” or “the Board” held in Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018) [PDF version] 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 this article, we will examine the Board's finality rule in J.M. Acosta.

Convictions In Immigration Law

Many removal provisions for criminal offenses require that the alien have been convicted of a crime. The term “conviction” is defined for immigration purposes at section 101(a)(48)(A) of the Immigration and Nationality Act (“INA” or “Act”): “The term 'conviction' means, with respect to the 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 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.”

Section 237(a)(2) of the Act consists of provisions providing for the removability of aliens who are convicted of specific crimes. For example, section 237(a)(2)(A)(i) provides for removability for aliens who are convicted of a crime involving moral turpitude within five years of admission, section 237(a)(2)(A)(ii) covers removability for aliens who are convicted of two or more crimes involving moral turpitude, and section 237(a)(2)(A)(iii) encompasses removability for aliens who are convicted of an aggravated felony. We cover all of the section 237(a)(2) criminal removability grounds in a separate article. The common thread through all of the section 237(a)(2) removal provisions is that they almost all require criminal convictions. (The relatively uncommon section 237(a)(2)(B)(ii), which renders “habitual drug abusers or addicts” removable, is the sole section 237(a)(2) removability provision that does not require a conviction.)

Because many removability provisions require convictions, it is important to understand what constitutes a conviction under the immigration laws. In previous articles, we covered convictions in the context of vacated convictions [see article] and pretrial diversion agreements [see article]. In this article, we will examine convictions in cases when the alien may be in the process of, or still have a right to, seek appellate review of his or her conviction.

Finality of Conviction Requirement Stands

The Board published a comprehensive precedent on convictions in Matter of J.M. Acosta.

The current statute defining conviction (see above section) was codified in 1996. The Board noted that prior to 1996, “it was well established that a conviction did not attain finality for immigration purposes and therefore the civil consequence of deportation did not attach until the alien had either exhausted or waived the right to direct appellate review.” This rule, the Board explained, derived from a 1955 Supreme Court decision in Pino v. Landon, 349 U.S. 901, 901 (1955) (per curiam) [link].

The Board's most significant decision on convictions under the former laws came in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988) [PDF version]. In that decision (19 I&N Dec. at 551), the Board held that a conviction is when “the court has adjudicated [the alien] guilty or has entered a formal judgment of guilt.” In cases “where adjudication of guilt was withheld,” the Board outlined three requirements for a conviction:

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study release program, revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service); and
(3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding the person's guilt or innocence of the original charge.
(Id. at 551-52).

Moreover, the Board recognized in Okzok that “[i]t is well established that a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived.” Id. at 552 n.7.

The Board in Matter of J.M. Acosta observed that Congress relied on the first two prongs of Okzok in promulgating INA 101(a)(48)(A). Citing to various precedents, the Board explained that this was evidence that Congress intended to incorporate prior law into section 101(a)(48)(A). The Board concluded that the absence of the third prong in INA 101(a)(48)(A) was deliberate — “[t]he legislative history of the [statute] reflects a clear congressional intent to eliminate the third prong [of Okzok] for the specific purpose of avoiding the inconsistent outcomes that had resulted from the differing criminal procedures for deferred adjudications among the various states.” However, this did not resolve whether the Board's prior emphasis on finality — which is also not directly referenced in INA 101(a)(48)(A) — remains good law.

The Board had previously suggested that there is no evidence that INA 101(a)(48)(A) intended to remove the rule that an alien must waive or exhaust his or her direct appeal rights for a conviction to be final. Matter of Cardenas Abreu, 24 I&N Dec. 795, 814 (BIA 2009) (en banc) [PDF version]. In J.M. Acosta, the Board reaffirmed its position from Cardenas Abreu, holding that Congress would have been clear had it intended to eliminate or otherwise disturb “the long-standing finality requirement regarding the right to appeal a conviction.”

Thus, the Board held that the long-standing finality of conviction rule persists.

Requirements for Finality of a Conviction

The Board explained “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.” As a result, “absent a proof of a waiver of appeal rights,a conviction does not achieve finality for immigration purposes until the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction.”

If the Department of Homeland Security (“DHS” or “the Department”) establishes that the alien respondent in removal proceedings (1) has a criminal conviction at the trial level and (2) that the time for filing a direct appeal has passed, there is a presumption that the conviction has attained a sufficient degree of finality for immigration purposes. The presumption is rebuttable. The respondent may submit evidence that he or she filed an appeal within the deadline and that the appeal is pending. This evidence may include extensions or permissive filings granted by the appellate court. The respondent must also present evidence that the appeal either relates to his or her guilt or innocence or concerns a substantive defect in the criminal proceedings. (See our article on Matter of Marquez Conde for a discussion of the significance of the reasons behind an appellate court's decision to vacate a conviction.) The Board in JM Acosta explained that appeals that do not relate to the underlying merits “include those that relate only to the alien's sentence or that seek to reduce charges, to ameliorate the conviction for rehabilitative purposes, or to alleviate immigration hardships…” See e.g., Matter of Roldan, 22 I&N Dec. 512, 521-24 (BIA 1999) [PDF version]; Matter of Pickering, 23 I&N Dec. 621, 624-25 [PDF version].

Conclusion

Because many removal statutes relating to criminal conduct require a criminal conviction, the question of what constitutes a conviction for civil immigration purposes can, in some cases, be decisive. Aliens facing criminal charges should always seek to understand the potential immigration consequences of different criminal dispositions during his or her criminal proceedings. An alien who faces removal on criminal grounds should consult with an experienced immigration attorney for case-specific guidance on what defenses or forms of relief may be available.