Matter of J. M. Acosta, 27 I&N Dec. 420, 433-432 (BIA 2018).
The BIA reaffirmed that, for immigration purposes, 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. Consequently, absent 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. However, once the DHS 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. To rebut that presumption, a respondent must come forward with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court. The respondent must also present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantial defect in the criminal proceedings. Appeals, including direct appeals, that do not relate to the underlying merits of the conviction will not be given effect to eliminate the finality of the conviction. Such appeals include those that relate only to the alien’s sentence or that seek to reduce the charges, to ameliorate the conviction for rehabilitative purposes, or to alleviate immigration hardships, and any other appeals that do not challenge the merits of the conviction.
Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas. His previous experience includes removal defense, asylum, family-based petitions, investment visas, consular processing, and administrative/federal appeals.