Professional Documents
Culture Documents
I
Orabi, an Egyptian citizen, was admitted to the United
States in 1990 and became a lawful permanent resident
without conditions in 1996. In 2010, he was convicted in the
U.S. District Court for the Southern District of New York
(S.D.N.Y.) for the offenses of Conspiracy to Commit Fraud
in connection with Access Devices, Possession of Counterfeit
Access Devices, Possession of Counterfeit and Forged
Checks, and Aggravated Identity theft. He was sentenced to a
term of imprisonment of 70 months. In November 2011, the
District Court amended its judgment and recalculated Orabis
sentence; however, Orabi was still sentenced to a term of 70
months. He appealed that order to the Second Circuit in
December 2011, and that appeal remains pending. See
United States v. Ibrahim (Orabi), C.A. No. 12-0044 (2d Cir.,
filed Dec. 29, 2011).
In February 2012, the Department of Homeland
Security (DHS) initiated removal proceedings against
Orabi. Among other things, DHS charged that Orabi was
removable under 8 U.S.C. 1227(a)(2)(A)(iii) because his
S.D.N.Y. conviction was for an aggravated felony. See 8
U.S.C. 1101(a)(43)(R). Orabi notified DHS and the
Immigration Court that he was appealing the S.D.N.Y.
conviction, and DHS moved to withdraw the aggravated
felony removal charge. At a subsequent removal hearing,
Orabi appeared pro se and took part in an ambiguous
exchange with the IJ regarding the status of the Second
Circuit appeal. At the IJs request, Orabi also agreed to
provide a letter that ostensibly withdrew his Second Circuit
appeal. DHS therefore moved to reinstate the removal
charge, and the IJ sustained it.
A
We have already discussed supra why the
Governments position as to the withdrawal of Orabis appeal
cannot prevail. Based on the Second Circuit record, Orabi
had and has a pending appeal before that Court. See
Fiadjoe v. Atty Gen., 411 F.3d 135, 153 (3d Cir. 2005).
Additionally, the BIA did not base its decision on its finding
that Orabi did not have a pending appeal, but rather on its
determination that a conviction is final for immigration
purposes regardless of whether a direct appeal is pending.
See AR 3 (citing Planes v. Holder, 686 F.3d 1033, 1034 (9th
Cir. 2012) (Ikuta, J., concurring in denial of rehearing en
banc)).
B
The
Governments
argument
regarding
the
sentence/conviction distinction and the contents of Orabis
Second Circuit appeal is similarly unavailing. Because the
BIA did not reach its decision based on this ground, we may
not affirm the judgment on this ground. See Sec. & Exch.
Commn v. Chenery Corp., 332 U.S. 194, 196 (1947) ([A]
reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make,
must judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate or
improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate
or proper basis.); Li v. Atty Gen., 400 F.3d 157, 163 (3d
Cir. 2005) (noting that a court cannot affirm an agency
decision on a ground upon which the agency did not rely).
C
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8 U.S.C. 1101(a)(48)(A).
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I.
As the majority correctly notes, prior to the enactment
of the IIRIRA, the term conviction was not defined in the
immigration laws. Under pre-IIRIRA case law, a conviction
could not serve as the basis for removal until it had attained
a substantial degree of finality. Such finality [did] not occur
unless and until direct appellate review of the conviction . . .
ha[d] been exhausted or waived. Marino v. INS, 537 F.2d
686, 691-92 (2d Cir. 1976) (citing, inter alia, Pino v. Landon,
349 U.S. 901 (1955)). This finality requirement, as some
courts have referred to it, was well established. White v. INS,
17 F.3d 475, 479 (1st Cir. 1994) (referring to the finality
requirement, which required the exhaustion or waiver of
direct appellate review before a conviction occurred for
immigration purposes); see also Martinez-Montoya v. INS,
904 F.2d 1018, 1025 (5th Cir. 1990) (tracing requirement of
finality to Supreme Courts decision in Pino); MoralesAlvarado v. INS, 655 F.2d 172, 175 (9th Cir. 1981)
(acknowledging that conviction on direct appeal is not final
for immigration purposes); Aquilera-Enriquez v. INS, 516
F.2d 565, 570 (6th Cir. 1975) (discussing Pino and finality for
immigration purposes); Will v. INS, 447 F.2d 529, 533 (7th
Cir. 1971) (same).
As the states adopted various criminal procedures
designed to amelior[ate] the consequences of a conviction,
the finality requirement proved increasingly difficult to apply
in the immigration context.1 In re Ozkok, 19 I. & N. Dec.
1
I respectfully dissent.
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