BIA Remands for IJ to Consider Status of Pending Appeal and Determine Whether a Continuance May be Appropriate
The BIA remanded for the IJ to consider the status of the pending appeal and new evidence, and to determine whether a continuance may be appropriate. The appeal of the IJ's determination regarding removability is dismissed.
The BIA found that:
(1) 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.
(2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut 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.
(3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.
Board Member Garry D. Malphrus issued a concurring and dissenting opinion.
Matter of Acosta, 27 I&N Dec. 420 (BIA 2018)
Related Resources
- Practice Pointer: Matter of L-A-B-R-
- Attorney General States IJs May Only Grant Continuances "For Good Cause Shown" Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018)