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Matter of J. M. Acosta, 27 I&N Dec. 420 (BIA 2018)
(1) A conviction does not attain a sufficient degree of finality for immigration purposesuntil the right to direct appellate review on the merits of the conviction has been exhaustedor waived.
(2) Once the Department of Homeland Security has established that a respondent has acriminal conviction at the trial level and that the time for filing a direct appeal has passed,a presumption arises that the conviction is final for immigration purposes, which therespondent can rebut with evidence that an appeal has been filed within the prescribeddeadline, including any extensions or permissive filings granted by the appellate court, andthat the appeal relates to the issue of guilt or innocence or concerns a substantive defect inthe criminal proceedings.
(3) Appeals, including direct appeals, and collateral attacks that do not relate to theunderlying merits of a conviction will not be given effect to eliminate the finality of theconviction.