Crimes of Moral Turpitude

(B)  Effect of 1996 Definition of Conviction.  An issue before the courts now is whether the new statutory definition of conviction has altered this rule.  The BIA has not yet overruled its finality cases in any published opinion.[124]  The BIA, however, does not consistently recognize the finality rule in its unpublished decisions. 

            At this point, the First, Second, Fifth, Seventh or Tenth Circuits have held or implied that IIRAIRA dispensed with the finality requirement, at least in the context of direct appeals.[2]  Counsel can argue that the reasoning of these decisions, however, is faulty.  The general rule is that Congress, when legislating on a subject, is aware of the existing judicial decisions on that subject.  For example, in Pino v. Landon,[125] the Supreme Court considered a Massachusetts conviction that had been revoked and placed on file.  The court stated, “[O]n the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore held it could not support the deportation charge.  Many lower court and administrative decisions have followed Pino on this point.  When Congress fails expressly to overrule existing judicial decisions, it is deemed to have approved of them.[126]  In the 1996 statutory definition of conviction, Congress did not expressly overrule the finality decisions.  Therefore, the 1996 legislation did not alter the pre-existing rule.  This powerful argument should prevail in other circuits.  Existing published BIA decisions enforce the finality argument in all circuits that have not expressly held to the contrary, and the finality requirement should be raised even in those circuits that have mistakenly suggested or held to the contrary, since the adverse decisions may not fully have presented the favorable law on the issue.

[127] See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (reserving question).

[124] See Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) ("IIRAIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute); Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. Jun. 29, 2007); Abiodun v. Gonzales, 461 F.3d 1210, 1213 (10th Cir. 2006); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (possibly dictum), see Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (ignoring finality requirement but remanding because there was no evidence that court had imposed any punishment, penalty, or restraint on liberty) petitioner, as required by statute to constitute a conviction).

[125] Pino v. Landon, 349 U.S. 901 (1955) (per curiam).

[126] See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379, 102 S.Ct. 1825, 1841 n.66 (1982) (Congress presumed aware of judicial interpretation of a statute and to adopt it when it re-enacts a statute without changing it); Matter of Punu, supra, at 243-248 (Boardmember Rosenberg concurring and dissenting).