Crimes of Moral Turpitude

(F)  Pendency of Post-Conviction Relief.  The pendency of post-conviction remedies, not constituting a direct appeal of right from the original conviction, does not destroy the finality of the conviction.[135]  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.[136]  “[I]t is the usual administrative practice that action in the deportation case be deferred to await completion of probation and extinction of sentence.”[137]  Direct appeal from denial of a collateral attack on a conviction, however, does not disturb the finality of the conviction for immigration purposes.[138]

On the other hand, once a conviction has been set aside on collateral attack, it ceases to exist for immigration purposes even if an appeal from the vacatur is pending, because there is no clear and convincing evidence the conviction still exists.  See § 10.4, infra.  For further discussion, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 7.37 (4th ed. 2007).

[135] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (Kentucky conviction was sufficiently final, at the time of defendant’s deportation, to qualify as aggravated felony conviction for purposes of enhancing sentence for illegal re-entry, since original conviction had become final; direct appeal from two judgments denying relief in a collateral attack on judgment of conviction was not a direct appeal from judgment of conviction); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); 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); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992); Rivas v. INS, No. 02 Civ. 677(DLC) (S.D.N.Y. Jan. 27, 2003) (unpublished) (“A conviction is final and may be relied upon in removal proceedings when review of the conviction on direct appeal has concluded.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, No. 3:03CV96(JBA) (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). 

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

[137] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][c][ii] (2007), 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).

[138] 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).  See also Al-Najar v. Mukasey, 515 F.3d 708 (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court constituted an impermissible collateral attack).