IDP and our allies continue to engage in strategic litigation before the immigration agencies and the federal courts in support of the conviction “finality rule,” which holds that for a criminal conviction to trigger certain immigration consequences, all direct appeals of right must be exhausted or waived. Please contact IDP’s litigation experts for amicus support or technical assistance in cases involving the rights of immigrants to appeal their convictions without suffering deportation consequences.
(1) Amicus Brief to Second Circuit (Aug. 22, 2017)
(2) Amicus Brief to BIA
(3) Third Circuit Decision in Orabi v. Att’y Gen., 738 F.3d 535 (3d Cir. 2014).
(4) Ninth Circuit Dissenting Opinion in Planes v. Holder, 652 F.3d 991 (9th Cir. 2011)
(5) Practice Advisory: The Conviction Finality Requirement in Light of Matter of J.M. Acosta: The Law Circuit-by-Circuit and Practice Strategies Before the Agency and Federal Courts (January 24, 2019, by IDP)
BIA and Federal Court Decisions on the Finality Rule
The Board of Immigration Appeals 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. The Board also ruled that, once the time for filing a direct appeal has passed, a presumption arises that the conviction is final. However, the immigrant can rebut that presumption with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.
Cardenas Abreu v. Holder, 378 F. App’x 59 (2d Cir. May 24, 2010)
The Second Circuit held that a noncitizen who has been granted leave to file a late-notice criminal appeal under New York Criminal Procedure Law 460.30 cannot be treated differently than a noncitizen who filed a timely appeal. This overrules the BIA’s contrary precedent in Matter of Cardenas Abreu. An amicus brief filed by IDP and the New York State Defenders Association raised issues of fairness, due process, and practicality with the BIA’s rule and demonstrated with empirical evidence that the BIA misunderstood New York criminal law practice. Mr. Cardenas Abreu was represented by the Center for Constitutional Rights.
- Decision: Cardenas Abreu v. Holder
- Amicus Brief of IDP and New York State Defenders Association submitted in Cardenas Abreu v. Holder (prepared and submitted by Julia J. Peck, Esq.)
- Additional briefs submitted in Cardenas Abreu v. Holder
Orabi v. Att’y Gen., 738 F.3d 535 (3d Cir. 2014)
The Third Circuit held that a conviction does not attain sufficient degree of finality for immigration purposes until direct appellate review of the conviction had been exhausted or waived. The court denied the Government’s petition for rehearing on March 27, 2014.
- Decision: Orabi v. Att’y Gen.
- IDP Amicus Brief in Opposition to Government Petition for Rehearing submitted in Orabi v. Att’y Gen. (prepared and submitted by Julia J. Peck of the law firm Quinn Emanuel)
Planes v. Holder, 652 F.3d 991 (9th Cir. 2011)
The Ninth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) eliminated the finality rule. Seven judges joined an opinion dissenting from denial of rehearing en banc.
- Decision: Planes v. Holder
- Dissent from Denial of Petitioner’s Petition for Rehearing (pp. 6-14) in Planes v. Holder
- Amicus Brief of IDP, Washington Defender Association, and California Attorneys for Criminal Justice in Support of Petitioner’s Motion for Rehearing submitted in Planes v. Holder (prepared and submitted by Julia J. Peck of the law firm Hoguet Newman Regal & Kenney, LLP.)
- Amicus Brief of Asian Law Caucus et al in Support of Petitioner’s Petition for Rehearing submitted in Planes v. Holder