The Second Circuit has determined the Board of Immigration Appeals’ decision in Matter of JM Acosta - which addresses the finality of a conviction on direct appeal - is not entitled to deference. The Court agreed that the definition of conviction in the INA is ambiguous with respect to whether it applies to convictions on appeal. However, it disagreed with the burden-shifting framework laid out in JM Acosta.
“We need not here decide whether some limits on the finality requirement may appropriately be read into the IIRIRA, because we conclude that the specific burden-shifting regime and evidentiary standard demanded by the BIA to show a merits-based appeal is not reasonable. Specifically, the BIA requires a non-citizen to make a merits-based showing at the notice stage, often before he is able to review the record or identify his arguments on appeal. The BIA points to nothing in the statutory text or legislative history indicating that this requirement reflects Congressional intent. Moreover, the requirement ignores the realities of appellate practice.”
The full text of Braithwaite v. Garland can be found here: