Planes v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL ANGELO SAMONTE PLANES, 
Petitioner, No. 07-70730
v.
 Agency No.
A037-329-028
ERIC H. HOLDER Jr., Attorney
General, ORDER
Respondent.

Filed June 5, 2012

Before: Harry Pregerson, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.

Order;
Concurrence by Judge Ikuta;
Dissent by Judge Reinhardt

ORDER

The panel has voted to deny Petitioner’s Petition for Panel
Rehearing En Banc. Judges Callahan and Ikuta have voted to
deny the en banc petition. Judge Pregerson has voted to grant
the en banc petition.

A judge of this court called for this case to be reheard en
banc. A vote was taken, and a majority of the active judges
of the court did not vote for a rehearing en banc. Fed. R. App.
35(f).

The petition for rehearing en banc is therefore DENIED.

6275
6276 PLANES v. HOLDER
IKUTA, Circuit Judge, with whom O’SCANNLAIN,
CALLAHAN, and BEA, Circuit Judges, join, concurring in
the denial of rehearing en banc:

The dissent from the denial of rehearing en banc neglects
a salient point: Every circuit that has given a reasoned opinion
on the interpretation of “conviction” in 8 U.S.C.
§ 1101(a)(48)(A) has reached the same conclusion as the
panel does here, namely, that “[t]he term ‘conviction’ means,
with respect to an alien, a formal judgment of guilt of the
alien entered by a court,” regardless whether appeals have
been exhausted or waived. 8 U.S.C. § 1101(a)(48)(A); see
Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir. 2011);
Puello v. Bureau of Citizenship & Immigration Servs., 511
F.3d 324, 331-32 (2d Cir. 2007); Montenegro v. Ashcroft, 355
F.3d 1035, 1037 (7th Cir. 2004) (per curiam); Moosa v. INS,
171 F.3d 994, 1009 (5th Cir. 1999); see also Griffiths v. INS,
243 F.3d 45, 50-51 (1st Cir. 2001).

Most recently, the Tenth Circuit explained in no uncertain
terms that Congress defined “conviction” in § 1101(a)(48)(A)
“specifically to supplant a prior BIA interpretation that had
required deportation to wait until direct appellate review
(though never collateral review) of the conviction was
exhausted or waived.” Waugh, 642 F.3d at 1284 (quoting
United States v. Adame-Orozco, 607 F.3d 647, 653 (10th
Cir.), cert. denied, 131 S. Ct. 368 (2010)) (internal quotation
marks omitted). “From this,” the Tenth Circuit concluded, “it
follows that an alien is lawfully deportable as soon as a for-
mal judgment of guilt is entered by a trial court.” Id. (quoting
Adame-Orozco, 607 F.3d at 653) (internal quotation marks
omitted); see also United States v. Saenz-Gomez, 472 F.3d
791, 794 (10th Cir. 2007) (rejecting the argument that Con-
gress intended the definition of “conviction” in
§ 1101(a)(48)(A) to require exhaustion or waiver of appeals,
and instead relying on the literal language to hold that the fil-
ing of a written judgment against the petitioner constituted a
“conviction” for purposes of the statute).
 PLANES v. HOLDER 6277
Other circuits have reached similar conclusions. In Puello,
the Second Circuit stated: “IIRIRA did, however, eliminate
the requirement that all direct appeals be exhausted or waived
before a conviction is considered final under the statute.” 511
F.3d at 332. This conclusion is directly on point and identical
to the panel’s conclusion here. Two subsequent unpublished
opinions have reiterated this conclusion,1 and no Second Cir-
cuit opinion has disagreed.

In Montenegro, the Seventh Circuit stated:

Before the enactment of IIRIRA, the Supreme Court
required that a deportation proceeding be based on a
conviction that had sufficient ‘finality,’ which we
interpreted to mean that the alien no longer had any
direct appeal pending. IIRIRA, however, treats an
alien as ‘convicted’ once a court enters a formal
judgment of guilt. IIRIRA eliminated the finality
requirement for a conviction . . . . Under IIRIRA,
therefore, Montenegro’s conviction in April 1996 of
an aggravated felony rendered him removable.

Montenegro, 355 F.3d at 1037-38 (emphasis added) (internal
citations omitted).
1
See Ramirez v. Holder, 447 F. App’x 249, 251 n.1 (2d Cir. 2011) (sum-
mary order) (“This court has suggested that the definition of ‘conviction,’
added to the immigration laws in 1996, ‘eliminate[d] the requirement that
all direct appeals be exhausted or waived before a conviction is considered
final under the statute.’ Because Ramirez’s petition is without merit even
under the more favorable definition of conviction applied by the BIA, we
need not here decide whether Puello’s construction should be followed.”
(alteration in original) (internal citation omitted) (quoting Puello, 511 F.3d
at 332)); Alejo v. Mukasey, 292 F. App’x 128, 128 (2d Cir. 2008) (sum-
mary order) (“As we have explained, in 1996, Congress ‘eliminate[d] the
requirement that all direct appeals be exhausted or waived before a con-
viction is considered final.’ ” (alteration in original) (quoting Puello, 511
F.3d at 332)).
6278 PLANES v. HOLDER
In Moosa, the Fifth Circuit considered whether Congress
intended to retain the “finality requirement” that the BIA had
“superimposed” on the definition of “conviction,” Moosa, 171
F.3d at 1000, and concluded that the finality requirement had
been eliminated by the new statutory language of IIRIRA. Id.
at 1001-02 (quoting the current version of § 1101(a)(48)(A)
and concluding that it eliminated the finality requirement).

Unable to cite a single circuit court that has adopted their
proposed interpretation, the dissent instead argues that we
should ignore the interpretation and reasoning of our sister
circuits because the statutory construction issue in those cases
arose in different contexts. Dissental at 6284-85 n.4. Each of
our sister circuits, however, interpreted the same statutory lan-
guage as the panel interpreted here. As the Supreme Court
unanimously held, the same words in the same statute have
the same meaning, regardless of the context. See Leocal v.
Ashcroft, 543 U.S. 1, 12 n.8 (2004).

Nor does the dissent offer any persuasive justification for
rejecting the reasoned decisions of our sister circuits. The dis-
sent relies primarily on a BIA decision issued before Con-
gress enacted the current version of § 1101(a)(48)(A), in
which the BIA stated that a conviction is not final “until direct
appellate review of the conviction has been exhausted or
waived.” See Matter of Ozkok, 19 I. & N. Dec. 546, 552 n.7
(B.I.A. 1988). According to the dissent, the panel should have
followed Ozkok, because the lack of any express statement in
the legislative history that Congress rejected this finality
requirement means that the panel should read it into the
amended statute. Dissental at 6285-86. The dissent’s reliance
on Congressional silence to construe a statute is clearly
wrong: when the plain language of the statute is clear, it is
improper to look for hidden meanings within the legislative
history, much less within the silences of the legislative his-
tory. See Cmty. for Creative Non-Violence v. Reid, 490 U.S.
730, 749 (1989) (rejecting the argument that Congress’s fail-
ure to expressly reject judicial interpretations of an earlier
 PLANES v. HOLDER 6279
version of a statute meant that Congress intended to incorpo-
rate that interpretation in the amended statute, and noting that
“[o]rdinarily, Congress’ silence is just that—silence” (quoting
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987))
(internal quotation marks omitted)).

Moreover, to the extent a court might consider what Con-
gress chose not to say, it would have to recognize that when
Congress “adopted almost verbatim the definition set out by
the BIA in Matter of Ozkok,” dissental at 6285, Congress
chose not to include the very statement in Ozkok on which the
dissent relies. Similarly, Congress also decided not to include
Ozkok’s conclusion that a deferred adjudication counts as a
“conviction” only if it is not subject to appeal or other pro-
ceedings. See Ozkok, 19 I. & N. Dec. at 552. In light of these
silences, it is most reasonable to infer that Congress intention-
ally omitted any finality requirement from its definition of
“conviction.” And even if it was Congress’s intent to import
the Ozkok finality requirement into the statute, there is a
straightforward remedy: Congress may revise the plain lan-
guage of the statute.

Finally, the dissent is mistaken in asserting that the panel
erred by failing to remand to the BIA to obtain its interpreta-
tion of § 1101(a)(48)(A) first. It is well established that the
court, not the BIA, is responsible for statutory interpretation.
See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final
authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear con-
gressional intent.”); Federiso v. Holder, 605 F.3d 695, 697
(9th Cir. 2010) (“Only if we determine that a statute is ambig-
uous do we defer to the [BIA’s] interpretation. We may not
accept an interpretation clearly contrary to the plain meaning
of a statute’s text.”) (internal citations omitted). Because the
6280 PLANES v. HOLDER
plain language of § 1101(a)(48)(A) is unambiguous, the panel
was correct to address this issue in the first instance.2

In sum, the panel decided the issue before it in a manner
consistent with the plain language of the statute and with all
other circuits that have ruled on the issue. The panel’s
approach and conclusion were correct, as was the decision of
the court not to rehear the case en banc.

REINHARDT, Circuit Judge, with whom Chief Judge
KOZINSKI and Judges PREGERSON, THOMAS,
WARDLAW, W. FLETCHER, and PAEZ join, dissenting
from the denial of rehearing en banc:

The three-judge panel in this case decided a question of
exceptional importance: whether immigrants in our country,
lawful and unlawful, can be deported immediately after a trial
court enters a judgment of guilt against them in a criminal
case, before they have had the opportunity to obtain appellate
review of their convictions. Reasoning, inexplicably, that the
Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), in enacting the definition of conviction in 8
U.S.C. § 1101(a)(48)(A), eliminated the finality rule which
barred deportations pending appellate review, the panel held
2
The dissent’s claim that the panel decided this case on a basis not
raised by the petitioner is baseless. Planes stated the issue before the court
in his opening brief: whether “the BIA erred in determining that petition-
er’s federal 18 U.S.C. § 1029 offense qualified as a ‘conviction’ for immi-
gration purposes because he had not yet received any sentence on his
crime, thus it did not meet the requirements for a conviction under INA
§ 101(a)(48)(A).” In direct response to the legal issue before us, we con-
cluded that the BIA did not err in determining that Planes’s 2004 convic-
tion was a “conviction” for immigration purposes even though, as the BIA
noted, further proceedings were pending. We agreed with the BIA’s con-
clusion that these proceedings (which also included a further right to
appeal) did not relate to whether Planes stood convicted of the crime. In
re Planes, 2007 WL 416855 (B.I.A. Jan. 24, 2007) (unpublished).
 PLANES v. HOLDER 6281
that such an unreasonable practice is now lawful. It did so
despite the fact that the Board of Immigration Appeals
(“BIA”) did not mention or consider the issue in its opinion,
that the parties did not brief it either before the BIA or before
this court, and, most important, that Congress clearly
expressed its intent to preserve the longstanding rule that a
conviction is not final for immigration purposes until the
immigrant has exhausted or waived his direct appeal as of
right.

The consequence is that countless immigrants, including
lawful permanent residents with young U.S. citizen children
and other strong ties to the United States, are subject to imme-
diate deportation should a trial court ever enter a judgment of
guilt against them. Such a rule deprives immigrants who are
deported prior to appellate review of their due process rights
when pursuing an appeal, including consulting with their
counsel, should they even be able to obtain appellate counsel.
In addition, even if their convictions are subsequently over-
turned, they remain ineligible to reenter the country without
the permission of the Attorney General, and the only recourse
available to them is most likely a request to the BIA for dis-
cretionary reopening of their immigration case, the denial of
which the courts are powerless to review.1 As to immigrants
not deported before their direct appeals have been completed,
1
Even if the BIA exercises its discretion and reverses a deportation
order, an already deported immigrant may have trouble returning to the
United States. Recently, the U.S. Department of Justice admitted that,
despite misleading representations made by the government to the
Supreme Court in Nken v. Holder, there was not, until recently, a written
policy to facilitate the return of aliens who had been removed pending
judicial review of BIA orders. See Letter of April 24, 2012, from Deputy
Solicitor General, Nken v. Holder, 556 U.S. 418 (2009) (No. 08-681),
available at http://online.wsj.com/public/resources/documents/return.PDF.
The government noted that plaintiffs in a Freedom of Information Act case
in district court had submitted declarations showing that they had “en-
countered significant impediments in returning” and that these declara-
tions “have raised questions about the promptness and consistency with
which return has actually been accomplished.” Id.
6282 PLANES v. HOLDER
the BIA, as a result of the decision we decline to review, may
still enter a final order of deportation against them, regardless
of the pendency of their appeal. Upon entry of such an order,
those immigrants would be stripped of whatever legal status
they previously enjoyed, be unable to obtain lawful employ-
ment, and be left with only a request to the BIA for discre-
tionary reopening should their convictions be overturned after
the expiration of the 90-day period in which to file a timely
motion to reopen. Should the BIA refuse to exercise its unre-
viewable discretion, they will face an order of deportation that
can be enforced whenever the Department of Homeland
Security (“DHS”) decides to deport them.2

This is not what the law requires, and not what Congress
intended. The panel arrived at its holding only by disregarding
Congress’ intent and asserting that the language of the statute
is clear, all while ignoring (in fact, not even mentioning) the
fact that this same language had long been interpreted to
include the finality rule. The decision is all the more egre-
gious because the panel expressly reached beyond its review
power to adopt a rule providing for such unconscionable treat-
ment to immigrants in our country, including longtime lawful
permanent residents with U.S. citizen children. Because this
is an issue of exceptional importance that was erroneously
reached and wrongly decided, I strongly regret our failure to
rehear the case en banc and must respectfully dissent.
2
Even a reversal of an appeal may not be sufficient to persuade the BIA
to reopen a case or the DHS to cancel a deportation order. See, e.g., Matter
of Steven, 2011 WL 1792599 (BIA 2011) (denying motion to reopen after
conviction had been vacated because the agency could not determine from
the record the reason for vacating the conviction, although the record con-
tained the motion filed by the criminal attorney explaining the reasons
seeking to do so); Matter of Estevez, 2011 WL 3889669 (BIA 2011)
(denying motion to reopen because, although conviction was vacated, the
reason could not be discerned from the record); Matter Gonzalez-Ramirez,
2010 WL 3355098 (BIA 2010) (same); Matter of Spencer, 2009 WL
773245 (BIA 2009) (same).
 PLANES v. HOLDER 6283
I. The BIA Did Not Decide (Or Even Mention), and the
Parties Did Not Brief, the Elimination of the Finality
Rule

The three-judge panel overstepped its authority and decided
the petition for review on a ground not relied upon by the
BIA. Nowhere, not even in passing, is the finality rule ever
mentioned by the agency. Nor was the issue briefed before the
BIA, or the panel, by either party.3 In ignoring these facts, the
panel also ignored the clear mandate from the Supreme Court
and our case law that we “must judge the propriety of [agency
action] solely by the grounds invoked by the agency.” SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947) (emphasis added);
see also Hernandez-Cruz v. Holder, 651 F.3d 1094, 1109-10
(9th Cir. 2011) (noting that we cannot “supply a reasoned
basis for the agency’s action that the agency itself has not
given”) (internal quotation marks and citations omitted);
Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004)
(“[W]e must decide whether to grant or deny the petition for
review based on the Board’s reasoning rather than our own
independent analysis of the record.”) (emphasis added); Andia
v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)
(“In reviewing the decision of the BIA, we consider only the
grounds relied upon by that agency.”) (emphasis added);
Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (“[T]his
court cannot affirm the BIA on a ground upon which it did not
rely.”); Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.
1988) (“[O]ur review is confined to the BIA’s decision and
the bases upon which the BIA relied.”).
3
The issue before the BIA was different: whether following an affir-
mance of the conviction on direct appeal and an Ameline remand for
resentencing, the direct appeal of the conviction had been exhausted and
only a collateral proceeding remained, or whether notwithstanding the
affirmance of the conviction a direct appeal still remained pending a fur-
ther review of the sentence. Implicit in both parties’ positions was the
assumption that the finality rule remained unchanged.
6284 PLANES v. HOLDER
Dispositively, the only time since the enactment of the
IIRIRA that the BIA actually considered the question of the
finality rule, it did so en banc in a case two years after it
decided the appeal in the petition now before us. In that case,
Matter of Abreu, the BIA ultimately determined that it was
not necessary to rule on the issue. 24 I. & N. Dec. 795, 798
(BIA 2009), vacated by Abreu v. Holder, 378 F. App’x 59 (2d
Cir. 2010). Nevertheless, seven out of fourteen members of
the en banc BIA court would have explicitly held that in
enacting IIRIRA Congress did not eliminate the finality rule
for direct appeals as of right, id. at 802-03, 811-21, five other
members recognized the argument as a “forceful” one, id. at
798, and only two members would have held that the finality
rule was eliminated for such appeals, id. at 803-11. Since
then, the BIA has continued to apply the finality rule to direct
appeals as of right in unpublished decisions, recognizing that
a “conviction [becomes] final for immigration purposes when
the [alien] failed to appeal his conviction, allowed the appeal
period to lapse, waived his right to a direct appeal, or
exhausted the direct appeal of his conviction.” Matter of
McLarty, 2011 WL 2607064 (BIA 2011); see also Matter of
Evans, 2012 WL 177335 (BIA 2012); Matter of Guevara-
Medina, 2011 WL 6962795 (BIA 2011).

II. IIRIRA Did Not Eliminate the Finality Rule

Not only did the panel overstep its authority and rule on a
ground not relied upon by the BIA; it is also wrong on the merits.4
4
Although the panel purports to “join the well-reasoned opinions of the
Second, Fifth, Seventh, and Tenth Circuits,” each of the cases cited by the
panel is distinguishable, and only the one decided by the Tenth Circuit
purports to hold that a petitioner is not entitled to a direct appeal as of
right prior to being deported. The statement regarding the finality rule in
Puello v. Bureau of Citizenship & Immigration Services, 511 F.3d 324 (2d
Cir. 2007), was dicta, as later recognized by the Second Circuit itself. See,
e.g., Ramirez v. Holder, 447 F. App’x 249 (2d Cir. 2011). In fact, in Abreu
v. Holder, 378 F. App’x 59 (2d Cir. 2010), decided two years after Puello,
the Second Circuit remanded the case to the BIA for determination of this
 PLANES v. HOLDER 6285
Up until this decision by the panel, the rule had long been that
a conviction is not final for immigration purposes until the
defendant has exhausted or waived his direct appeal as of
right. See Matter of Ozkok, 19 I. & N. Dec. 546, 551-52 n.7
(BIA 1988). In Matter of Ozkok, the BIA held that a convic-
tion existed for immigration purposes “if the court has adjudi-
cated [the immigrant] guilty or has entered a formal judgment
of guilt,” stating that “[i]t is well established that a conviction
does not attain a sufficient degree of finality for immigration
purposes until direct appellate review of the conviction has
been exhausted or waived.” Id. at 551 & 552 n.7. Congress,
in enacting the definition of conviction in 8 U.S.C.
§ 1101(a)(48)(A), adopted almost verbatim the definition set
out by the BIA in Matter of Ozkok, defining a conviction as
“a formal judgment of guilt of the alien entered by a court.”
Nothing in IIRIRA or its legislative history suggests that Con-
gress intended the phrase “formal judgment of guilt” to be
interpreted any differently from how it always had been inter-
preted prior to the enactment of the statute. Certainly, nothing
suggests that Congress intended to eliminate the longstanding
finality rule that provided for exhaustion of direct appeals as
of right before a conviction became final for immigration pur-
poses. In fact, by adopting almost verbatim the definition

very question in the first instance. The Fifth Circuit in Moosa v. INS, 171
F.3d 994 (5th Cir. 1999), held only that the finality rule had been elimi-
nated as to deferred adjudications, which, as explained infra at pages
6286-87, all agree was the intent of Congress. Moosa unquestionably did
not deal with direct appeals as of right. In the Seventh Circuit, Montenegro
v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004) (per curiam), involved a peti-
tion for certiorari to the Supreme Court and a collateral attack on a convic-
tion, neither of which is a direct appeal as of right and neither of which
affected the finality of a conviction for immigration purposes even under
pre-IIRIRA case law. Finally, the Tenth Circuit case, United States v.
Saenz–Gomez, 472 F.3d 791 (10th Cir. 2007), was decided in the context
of a subsequent criminal reentry proceeding, not in an immigration pro-
ceeding deciding whether an alien can be deported immediately after the
trial court enters a judgment against him, regardless of whether a direct
appeal is pending.
6286 PLANES v. HOLDER
from Matter of Ozkok, Congress expressed its intent to pre-
serve the longstanding requirement of finality for direct
appeals as of right. “When the words of the Court are used in
a later statute governing the same subject matter, it is respect-
ful of Congress and of the Court’s own processes to give the
words the same meaning in the absence of specific direction
to the contrary.” Williams v. Taylor, 529 U.S. 420, 434
(2000); see also Alaska v. Native Village of Venetie Tribal
Gov’t, 522 U.S. 520, 530-31 (1998) (finding that Congress
incorporated requirements for a finding of a “dependent
Indian community” set out in previous case law where the text
of the subsequent statute “is taken virtually verbatim” from
the precedent and the Historical and Revision Notes to the
statute indicated an intent to codify the precedent).

In contrast, in IIRIRA, Congress did eliminate the finality
requirement for convictions as to which there is no entitle-
ment to an immediate direct appeal. Such convictions are
known as deferred adjudications. The BIA in Matter of Ozkok
held that, for immigration purposes, a deferred adjudication
would be considered a conviction if three elements were met,
the third of which consisted of a finality requirement.5 Con-
gress adopted, again almost verbatim, that definition from
Matter of Ozkok, except that it omitted the third element,
thereby eliminating the finality requirement as to deferred
adjudications, and thus provided that a conviction exists for
5
Matter of Ozkok defined a conviction in the deferred adjudication con-
text as follows: “Where adjudication of guilt has been withheld,” if
(1) a judge or jury has found the alien guilty or he has entered a
plea of guilty or nolo contendere or has admitted sufficient facts
to warrant a finding of guilty; (2) the judge has ordered some
form of punishment, penalty, or restraint on the person’s liberty
to be imposed . . . ; and (3) a judgment or adjudication of guilt
may be entered if the person violates the terms of his probation
or fails to comply with the requirements of the court’s order,
without availability of further proceedings regarding the person’s
guilt or innocence of the original charge.
19 I. & N. Dec. at 551-52.
 PLANES v. HOLDER 6287
immigration purposes once there is a finding of guilt and the
imposition of punishment in such proceedings. See 8 U.S.C.
§ 1101(a)(48)(A). The elimination of the finality provision for
deferred adjudications, along with the failure to make any
change in the language regarding direct appeals as of right,
further demonstrates Congress’ intent to retain the finality
rule for the latter category of appeals.

The panel completely disregarded this history. It relied on
the supposed “plain language of the statute,” without
acknowledging that this same language had long been inter-
preted for purposes of immigration law to include the finality
rule. It ignored the clear intent of Congress in taking the lan-
guage from Matter of Ozkok and codifying it in the statutory
definition of conviction with respect to cases including direct
appeals as of right—and it ignored the fact that Congress, in
that same statute, omitted the finality requirement for a differ-
ent category of cases, deferred adjudications. The panel also
ignored the fact that, when the BIA, the agency charged with
interpreting the statute, considered the matter en banc, it held
that it need not reach the issue, although seven out of its four-
teen members would have held that Congress intended to pre-
serve the finality rule, Matter of Abreu, 24 I. & N. Dec. at
802-03, 811-21, five other members recognized this argument
as a “forceful” one, id. at 798, and only two members out of
fourteen would have held, as the three-judge panel did here,
that Congress eliminated the finality rule for direct appeals as
of right, id. at 803-11. I believe that the majority of the BIA
had it right, and that it would hold, if allowed to decide the
case here, that the finality rule still applies to direct appeals
as of right.

At the very least, this court, like the Second Circuit, should
have returned the case to the BIA so that it could decide in a
published opinion the important issue that the Second Circuit
has already asked it to decide (see Abreu v. Holder, 378 F.
App’x 59): the continued applicability of the finality rule to
direct appeals as of right, which the BIA has overwhelmingly
6288 PLANES v. HOLDER
recognized in unpublished opinions in a manner directly con-
trary to what the three-judge panel holds here. Rather than
bypassing the BIA and deciding the question ourselves, if we
think that the issue must now be decided, we should have
afforded the BIA the opportunity to do so in a formal pub-
lished opinion of the Board.

***

In sum, the panel exceeded its authority in deciding the
petition for review on the ground that IIRIRA eliminated the
finality rule for direct appeals as of right. That is not what the
BIA decided; instead, the BIA simply characterized the pend-
ing proceedings in Planes’ case as “collateral proceedings”
affecting only his sentence. The panel also got the case wrong
on the merits. By adopting almost verbatim the definition of
conviction from Matter of Ozkok, Congress expressed its
intent to preserve the longstanding finality rule. It is regretta-
ble that our court has refused to rehear this case en banc to
correct the overreaching and misguided holding by the three-
judge panel. One can only hope that others will not make that
same error.

I dissent.
 PRINTED FOR
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