Interim Decision #3232
MATTER OF POLANCO
In Deportation Proceedings
A-34403819
Decided by Board October 21, 1994
(1) An alien 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.
(2) Where an alien failed to file a timely appeal from his conviction and did not show
that his request for a nunc pro tune appeal pursuant to Rule 2:4-4(a) of the New Jersey
Rules of Court had been granted, his conviction is final for immigration purposes.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)I—Convicted of
aeravated felony
Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(i)]—Convicted of
controlled substance violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Stephen A. Traylor, Esquire Jane H. Minichiello
20 Nassau Street, Suite 204 General Attorney
Princeton, New Jersey 08540-4509
BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
Alternate Board Member
The Immigration and Naturalization Service has appealed from a
decision of the immigration judge dated January 13, 1993, terminating
the proceedings in this case. The appeal will be sustained and the
record will be remanded to the immigration judge for further
proceedings.
The respondent is a native and citizen of the Dominican Republic
who was admitted to the United. States as a lawful permanent resident
on June 10, 1977. An Order to Show Cause and Notice of Hearing
(Form 1-221) alleges that he was convicted on October 3, 1991, in the
New Jersey Superior Court for Passaic County, of possession of a
controlled dangerous substance (cocaine) with intent to distribute
within 1,000 feet of school property.
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Interim Decision #3232
At his hearing, the respondent denied the charge of deportability on
the ground that he had filed a notice of appeal from his conviction and
that the conviction was therefore not fmal. The attorney for the
Service asserted that since the appeal had not been filed until July
1992, it was untimely. She conceded that the Appellate Division of the
New Jersey Superior Court had "accepted" the respondent's late
appeal, although no documentation of such acceptance had been
offered or admitted into evidence. However, she argued that the
conviction was final, citing Matter of Adetiba, 20 I&N Dec. 506 (BIA
1992), for the propositions that a conviction is final for immigration
purposes when the right to direct appellate review has been exhausted,
and that the finality of a conviction is not affected by the filing of a
post-conviction motion. The immigration judge determined that the
respondent's conviction was on direct appeal and terminated the
proceedings.
On appeal, the Service contends that the respondent's conviction is
final for immigration purposes because it was not timely filed. The
Government relies on the definition of the term "conviction" set forth
in
8 C.F.R. § 242.2(b) (1994), which provides:
The term conviction as used in section 242(i) of the Act means that—
(1) There Ins been a conviction by a court of competent jurisdiction; and
(2) All direct appeal rights have been exhausted or waived; or
(3) The appeal period has lapsed.
While acknowledging that the New Jersey Rules of Court provide a
procedure for allowing a nunc pro tune appeal, the Service asserts that
such an appeal is discretionary and does not affect the finality of the
respondent's conviction. We find that the respondent's conviction is
final and will sustain the Service's appeal.
The question of when a conviction becomes final for immigration
purposes has long been problematical. See Matter of Ozkok, 19 I&N
Dec. 546, 548-49 (BIA 1988). The United States Courts of Appeals
have generally agreed that a conviction is not final until direct
appellate review has been either exhausted or waived, but one subject
to collateral attack or other modification is final. White v. INS,
17 F.3d
475 (1st Cir_ 1994); Grageda v. INS,
12 F.3d 919 (9th Cir. 1993);
Martinez-Montoya v. INS,
904 F.2d 1018 (5th Cir. 1990); Okabe v.
INS,
671 F.2d 863 (5th Cir. 1982); Morales-Alvarado v. INS,
655 F.2d
172 (9th Cir. 1981); Marino v. INS, United States Dept. of Justice,
537
F.2d 686 (2d Cir. 1976); cf: Aguilera-Enriquez v. INS,
516 F.2d 565
(6th Cir. 197 5) (rejecting the "direct" versus "collateral" distinction in
favor of finality after entry of guilty plea and completion of sentencing), cert. denied,
423 U.S. 1050 (1976); Will v. INS,
447 F.2d 529 (7th
Cir. 1971) (concluding that a motion in arrest of judgment was in the
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category of a direct appeal and its pendency precluded a finding of
finality).
In Morales-Alvarado v. INS, supra, the Court of Appeals for the
Ninth Circuit addressed the novel question of whether immigration
authorities can consider a conviction final pending a discretionary
appeal, commonly referred to procedurally as a "direct appeal," to the
highest court of a three-tiered state system. Noting that prior caselaw
had only precluded consideration of an alien's conviction while his
appeal of right was pending, the court stated that a conviction is final
once the alien has exhausted the direct appeals to which he is entitled.
The court next determined that discretionary review on direct appeal
is more analogous to a collateral attack than to a direct appeal of right
for purposes of determining finality in immigration proceedings. Thus,
it concluded that an alien cannot escape deportation while awaiting
the disposition of a petition for discretionary review of his conviction
in a state court, or, likewise, of a petition for a writ of certiorari to the
United States Supreme Court.
The dissenting judge in Morales-Alvarado preferred to draw the line
of finality between direct appeals and collateral attacks, noting that the
most important difference between the two categories was that direct
appeals, whether of right or discretionary, must be pursued within a
clearly limited period of time. He observed that collateral attacks, on
the other hand, are often subject to no such restriction. For this reason,
the judge concluded that it would be "unreasonable to permit the
availability of a collateral attack to render a conviction non-final."
Morales-Alvarado v. INS, supra, at 175 (J. Canby, dissenting); see also
Aguilera-Enriquez v. INS, supra, at 571 (noting that weighing the
probability of success of every post - conviction motion would hopelessly complicate the process of deportation, "which Congress intended to
be simple and swift").
We concur with the reasoning of the court in Morales-Alvarado v.
INS, supra. We conclude, as did the majority in that case, that an alien
who has either waived or exhausted his right to a direct appeal of his
conviction is subject to deportation, and that the potential for
discretionary review on direct appeal will not prevent the conviction
from being considered final for immigration purposes. We further find
merit in the dissenting judge's observation that it would be unreasonable to delay the proceedings on the basis of the availability of post-conviction review that is not limited by any time constraints. In light
of this position, we now examine the New Jersey nunc pro tunc appeal
procedure.
According to Rule 2:4-1(a) of the New Jersey Rules of Court, a
defendant has the right to take a direct appeal within 45 days of the
entry of a final judgment. See Simmons v. Beyer, 689 F. Supp. 432, 440
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Interim Decision #3232
(D.N.J. 1988). If he fails to file a timely appeal within that period, the
Appellate Division of the Superior Court may extend the time for
appeal under the nunc pro tune appeal procedure provided in Rule
2:4-4(a).' Although the rule permits an extension of the filing period
for a maximum of 30 days, and a showing of good cause and the
absence of prejudice must normally be shown, the Supreme Court of
New Jersey has ordered the Appellate Division to relax these
requirements in the case of indigent defendants. State v. Altman, 438
A.2d 576, 577 (N.J. Super. Ct. App. Div. 1981).2 Such a defendant
must nevertheless demonstrate that he made a timely request of his
counsel to file an appeal on his behalf before the Appellate Division
will grant leave to file a late appeal.
Id. However, if that requirement is
met, the court may permit the defendant to take a mine pro tune
appeal "irrespective of the lateness of the hour." /d. 3
Although instructed to relax the requirements of Rule 2:4-4(a) for
indigent defendants, the Appellate Division has observed that "application[s] for leave to appeal nunc pro tune" in such cases are not
routinely granted. State v. Edwards,
446 A.2d 1217, 1220 (NJ. Super.
Ct. App. Div. 1982). We note in this regard that Simmons v.
Beyer,
supra, illustrates the denial of a defendant's motion for nunc pro tune
appeal by the Appellate Division, despite a trial judge's finding that
the required timely request for appeal to counsel had been expressed.
It is thus evident that a motion for leave to file a notice of appeal nunc
pro tune is discretionary in nature.
Following the rationale of Morales-Alvarado v. INS, supra, we find
that an alien who failed to file a timely appeal from his conviction
under New Jersey law has a final conviction for immigration purposes,
despite the potential for seeking a discretionary nunc pro tune appeal.
We consider it significant that the New Jersey Rules of Court contain
no time constraints whatsoever to limit the period during which a
defendant can request permission to take a nunc pro tune appeal. Were
Rule 2:4-4(a) provides as follows:
The appellate court, upon a showing of good cause and the absence of prejudice, may
extend the time fixed by R. 2:4 1(a) (final judgment) , for a period not exceeding
-
30 days, but only if the notice of appeal ... was in fact served and filed within the
time as extended.
2 In State v. Altman, supra, the court quoted a "Notice to Appellate Bar" from the
Supreme Court of New Jersey, published at 100 N.J.LJ. 1208 (1977), which stated:
The Supreme Court has directed the Appellate Division to relax Rule 2:4-4(a) in favor
of allowing an out-of-time appeal nunc pro tune on behalf of an indigent criminal
defendant in any case where it satisfactorily appears that the defendant, personally,
within Lime, requested his trial counsel or the Public Defender's Office to file an
appeal on his behalf.
3 The defendant in State K.
Altman, supra, moved to file a notice of appeal nunc pro
tunc almost 2 1/2 years after his conviction, and the court granted his motion.
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we to hold that a conviction under New Jersey law is not final simply
because an alien retains the right to apply for a late appeal, his
deportation proceedings could be postponed indefinitely by the mere
existence of the nunc pro tune appeal procedure. We do not believe
that Congress intended for the deportation of a convicted alien to be so
delayed. See Aguilera-Enriquez v. INS, supra; Will v. INS, supra.
In the case before us, the record contains a notice of appeal relating
to the respondent, which is signed by the Public Defender and
addressed to the Appellate Division of the Superior Court of New
Jersey.4 Although the parties to the appeal before us state that the
respondent's nunc pro tunc appeal was "accepted" by the court, the
notice of appeal is neither dated nor stamped by the Appellate
Division. In any event, the significance of any such "acceptance" is
unclear. There is no evidence, or even an allegation, that the court
entered an order granting the respondent permission to file a late
appeal or that such an appeal is presently under consideration. Under
these circumstances, we find that the respondent has failed to show
that he has been granted leave to take a nunc pro tune appeal by the
Appellate Division. Consequently, we conclude that the respondent's
conviction is final for purposes of supporting a deportation order. The
appeal will accordingly be sustained and the record will be remanded
to the immigration judge for further proceedings.
Inasmuch as the respondent has not shown that he has been granted
permission to take a late appeal, we need not determine what effect
proof of a pending nunc pro tunc appeal might have on the finality of
his conviction.
ORDER: The appeal of the Immigration and Naturalization
Service is sustained and the record is remanded to the immigration
judge.
4 We note that nothing in the notice of appeal or the other documents submitted by the
respondent indicates that he had asked counsel to submit an appeal on his behalf within
the time for filing an appeal. We therefore question whether the respondent even met the
requirements for seeking a late appeal. See State v. Altman, supra.
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