Immigration Law

BIA on Finality: Matter of J. M. Acosta, 27 I&N Dec. 420 (BIA 2018)

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 purposes
until the right to direct appellate review on the merits of the conviction has been exhausted
or waived.

(2) Once the Department of Homeland Security has established that a respondent has a
criminal 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 the
respondent can rebut with evidence that an appeal has been filed within the prescribed
deadline, including any extensions or permissive filings granted by the appellate court, and
that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in
the criminal proceedings.

(3) Appeals, including direct appeals, and collateral attacks that do not relate to the
underlying merits of a conviction will not be given effect to eliminate the finality of the
conviction.