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Finality of Convictions

The Board of Immigration Appeals (BIA) and many federal courts have long required that for a criminal conviction to trigger the criminal provisions of the immigration laws, all direct criminal appeals of right must be exhausted or waived. Only then can a criminal conviction render an immigrant deportable, subject to civil immigration detention, or barred from applying for relief from deportation or for lawful status. Increasingly, however, the federal government seeks to undermine this finality rule and to deport individuals whose convictions are still under appellate review.

IDP and our allies work to defend this vital procedural safeguard for immigrants in the criminal justice system. If you are seeking technical assistance or amicus support on the finality rule before the federal courts or the immigration agency, please contact Andrew Wachtenheim at andrew[at]immdefense[dot]org.

Litigation Resources on the Finality Rule

(1) Third Circuit Decision in Orabi v. Att’y Gen., 738 F.3d 535 (3d Cir. 2014).

(2) Ninth Circuit Disenting Opinion in Planes v. Holder, 652 F.3d 991 (9th Cir. 2011)

(3) Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu (May 9, 2009, by IDP)

BIA and Federal Court Decisions on the Finality Rule

Second Circuit

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.

Third Circuit

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.

Ninth Circuit

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.

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