(B)  Pendency of Post-Conviction Relief.  The pendency of post-conviction remedies, not constituting a direct appeal of right, does not destroy the finality of the conviction.[103]  Moreover, the possibility that post-conviction relief will be granted in the future upon satisfactory completion of probation has been deemed not to impair the finality of the conviction.[104]  “[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[105]       Direct appeal from denial of a collateral attack on a conviction, however, does not disturb the finality of the conviction for immigration purposes.[106]

[103] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (direct appeal from two judgments denying relief in collateral attack on judgment of conviction was not a direct appeal from judgment of conviction); Rivas v. INS, 2003 WL 192556 (S.D.N.Y. Jan. 27, 2003) (unpublished) (“A conviction is final and may be relied upon in removal proceedings when review of the conviction on direct appeal has concluded. Montilla v. INS, 926 F.2d 162, 164 (2d Cir.1991). A conviction subject to collateral attack is still final for the purpose of immigration review. Agero v. McElroy, 901 F.Supp. 146, 146 (S.D.N.Y.1995).”); Johnson v. INS, 2003 WL 151381 (D.Conn. Jan. 21, 2003) (unpublished) (“Moreover, Johnson’s conviction qualifies as a conviction even under the pre-§ 1101(a)(48) “finality” test of Montilla v. INS, 926 F.2d 162, 164 (2d Cir.1991) and Marino v. INS, 537 F.2d 686, 691-692 (2d Cir.1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28 U.S.C. § 2254.”); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality of conviction; this ruling was dictum since petition for review was dismissed as moot because conviction affirmed by state high court after BIA decision relying on it); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975). 

[104] Matter of RR, 7 I. & N. Dec. 478 (BIA 1957).

[105] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][c][ii] (2004), citing Matter of G, 9 I. & N. Dec. 159 (AG 1961), in effect modifying Matter of V, 7 I. & N. Dec. 242 (BIA 1956).  See Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980) (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of the conviction).

[106] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (direct appeal from two judgments denying relief in collateral attack on judgment of conviction was not a direct appeal from judgment of conviction).

BIA

FINALITY - POSSIBILITY OF FUTURE REDUCTION TO MISDEMEANOR DOES NOT UNDERMINE CURRENT FINALITY OF FELONY CONVICTION FOR AGGRAVATED FELONY DEPORTATION PURPOSES
Matter of Leon-Ruiz, 21 I. & N. Dec. 154 (BIA Jan. 3, 1996) (availability of post-conviction collateral attack does not affect the finality of the conviction for immigration purposes, unless and until the conviction has been overturned pursuant to such a motion). See Okabe v. INS, 671 F.2d 863, 865 (5th Cir.1982); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir.1975), cert. denied, 423 U.S. 1050 (1976); Matter of Gabryelsky, Interim Decision 3213, at 3-4 (BIA 1993); Matter of Adetiba, Interim Decision 3177, at 4-5 (BIA 1992).

CONVICTION - FINALITY
Matter of Chairz-Castaneda, 21 I. & N. Dec. 44 (BIA April 28, 1995) (right to appeal such issues as whether a violation of probation has occurred or the sentence imposed upon entry of judgment was correct will not prevent a finding of a final conviction for immigration purposes; to disturb finality, issues on appeal must relate to the issue of "guilt or innocence of the original charge.").

CONVICTION - FINALITY
Matter of Polanco, 20 I. & N. Dec. 894 (BIA Oct. 21, 1994) (noncitizen who has waived or exhausted the right to a direct appeal of a conviction is subject to deportation, and the potential for discretionary review on direct appeal will not prevent the conviction from being considered final for immigration purposes).

Lower Courts of Second Circuit

CONVICTION - DATE OF CONVICTION
Puello v. BCIS, 418 F.Supp.2d 436 (S.D.N.Y. Dec. 13, 2005) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

Fifth Circuit

CONVICTION - FINALITY - FULL FAITH AND CREDIT ACT NOT VIOLATED BY SENTENCING COURT'S CONCLUSION STATE DEFERRED ADJUDICATION PROBATION DISPOSITION CONSTITUTES CONVICTION FOR PURPOSES OF ENHANCING FEDERAL SENTENCE UNDER 18
U.S.C. 841(b)(1)(A) United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (Texas guilty plea resulting in imposition of deferred adjudication probation constituted a "prior conviction" for purposes of sentence enhancement under 18 U.S.C. 841(b)(1)(A), rejecting claim that it did not constitute a final conviction under Texas law and the Full Faith and Credit Act; 28 U.S.C. 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime."), following United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) ("[T]he principles of federalism and comity embodied in the full faith and credit statute are not endangered when a sentencing court, not questioning the propriety of the state's determination in any way, interprets how to apply New York's youthful offender adjudications to a Guidelines analysis.") (internal citation and quotation marks omitted); United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991) ("[D]octrines such as Full Faith and Credit, ... and related jurisdictional principles, are inapplicable ... where the issue is the role of prior state convictions in a federal sentencing scheme."); United States v. Carter, 186 Fed.Appx. 844, 847 (10th Cir.2006) (unpublished) ("It does not accord a state judgment less than full faith and credit for a federal court to determine its effect on a subsequent federal sentence under federal law."); see also United States v. Cisneros, 112 F.3d 1272, 1281 (5th Cir. 1997) (rejecting defendant's argument that "because he had successfully completed his two-year deferred adjudication probation," that offense "could not be used to enhance his punishment ... under 841(b)(1)(A)"); United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

CONVICTION - FINALITY - DRUG OFFENSES
Smith v. Gonzales, ___ F.3d ___, 2006 WL 3012856 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed).

NOTE: This case can be cited to support the position that a second controlled substances offense may be expunged under Lujan in the Ninth Circuit as long as the first conviction had not become final by the time of the second conviction.

CONVICTION - FINALITY - FIFTH CIRCUIT
Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) ("Moosa maintains that taking away the finality requirement would lead to absurd results, such as an alien being deported when his conviction is on appeal, but the conviction later being reversed. As discussed, that is not the case here. Be that as it may, such concerns are more properly addressed to Congress.").

Lower Courts of Fifth Circuit

CONVICTION - DATE OF CONVICTION IS DATE PUNISHMENT IMPOSED
Donaldson v. United States, __ F.Supp.2d __, 2005 WL 1248879 (S.D. Tex. April 26, 2005) (noncitizen found guilty by jury of an aggravated felony offense [simple possession] on November 13, 1989, but sentenced [to deferred adjudication] on January 19, 1990, was found to have been "convicted" on January 19, 1990, and was therefore permanently barred from naturalization for inability to show good moral character).