A decision of the court of appeal is final 30 calendar days after it is filed.[115]  A decision of the appellate department of the superior court becomes final 15 calendar days after it is filed.  These dates are extended if a petition for rehearing is filed, in which case it becomes final when the petition for rehearing is denied, or, if it is neither granted nor denied, 30 calendar days after the opinion was filed, whichever is earlier.[116]  The case is technically still on appeal until the remittitur is filed back in the trial court, which happens after any petition for review filed in the California Supreme Court has been resolved, and counsel can argue in immigration court that the appeal is not over, and the conviction is not yet final,  until then.

 

            Normally, a conviction is not considered final for immigration purposes if direct appeal as of right has not been exhausted or waived.  The BIA has recently decided that filing a late notice of appeal is ineffective to defeat the finality of a conviction, for purposes of beginning removal proceedings, even if the criminal court accepts it and begins a late appeal.  See § 6.21, infra.

[115] Cal. Rules of Court 24(a); Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001).

[116] Eg., Cal. Rules of Court 107(b)(1), (2) [misdemeanor cases].

Fifth Circuit

POST CON RELIEF " FINALITY " CONVICTION REMAINS FINAL DESPITE PENDENCY OF POST-CONVICTION ACTION UNTIL COURT ACTUALLY VACATES THE CONVICTION
Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982)(pending post-conviction motions do not operate to negate the finality of a conviction for deportation purposes, unless and until the conviction is overturned pursuant to such motions); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976)(pending post-conviction motions do not operate to negate the finality of a conviction for deportation purposes, unless and until the conviction is overturned pursuant to such motions).