March 23, 2019

Tenth Circuit: Pending Post-Conviction Motions or Collateral Attacks Do Not Negate the Finality of a Conviction for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Jimenez-Guzman v. Holder, Jr. on Tuesday, June 28, 2011.

The Tenth Circuit denied the petition for review. Petitioner, a Mexican citizen, seeks review of a final order of removal issued by the Board of Immigration Appeals (BIA). He contends that the court erred in denying his request for a continuance and in applying an incorrect legal standard to the evidence of his controlled-substance conviction; the Attorney General asserts that the Court lacks jurisdiction over a challenge to the denial of a continuance.

The Court found that there was no abuse of discretion in the denial of Petitioner’s motion for a continuance. Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned; the immigration judge had already continued the removal hearing several times while Petitioner awaited the state trial court’s disposition of his post-conviction motion. Additionally, the record and plea agreement negate any claim of ineffective assistance of counsel for failure to advise of the immigration consequences of Petitioner’s plea.

Lastly, after reviewing the substantial evidence, the Court determined that the government met its affirmative burden of establishing “through clear, unequivocal, and convincing evidence that [Petitioner] was removable based on his conviction of a crime relating to heroin, a federally controlled substance. Accordingly, the BIA committed no error in dismissing his appeal.”

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