On July 1, 2021, the Second Circuit issued a landmark decision in Brathwaite v. Garland, a case filed by PLS, finding that the Board of Immigration Appeals (BIA’s) imposition of a presumption of finality to state criminal convictions that were under appellate review was arbitrary and unreasonable.

In the case, Aldwin Brathwaite, a lawful permanent resident of the United States since 1979, was charged with removal from the country because of two New York State convictions in 2018. Shortly after the initiation of immigration proceedings, Mr. Brathwaite filed a motion with the First Judicial Department of the New York Appellate Division to review his state criminal convictions. Mr. Brathwaite sought appellate review because he had not been properly informed during the trial proceedings that his criminal convictions would have severe immigration consequences for him. Following the First Judicial Department’s grant of Mr. Brathwaite’s motion and agreement to hear his criminal appeal, Mr. Brathwaite sought to terminate his immigration proceedings so New York’s appellate body could properly consider his appeal and determine if his original convictions were properly obtained. Mr. Brathwaite relied upon a longstanding precedent first announced by the Supreme Court in 1955 that a noncitizen’s criminal conviction should not incur immigration consequences until appellate review has been exhausted or waived. 

The Immigration Judge, however, disagreed with Mr. Brathwaite’s argument for termination of the removal proceedings and ordered him removed from the United States. The Immigration Judge relied upon a 2018 decision issued by the BIA, Matter of J.M. Acosta, which held that a presumption of finality attaches to state criminal convictions once the initial period of filing for appellate review has passed and that a noncitizen bears the burden of proving his criminal appeal relates to a substantive or meritorious issue in order to overcome this presumption. Such a requirement was impossible for Mr. Brathwaite to meet because his criminal appeal had only just begun, he had not yet been assigned appellate counsel, and the record of his trial proceedings had not yet been produced for review. Mr. Brathwaite then appealed to the Immigration Judge’s decision to the BIA and, after the BIA affirmed the decision, sought review from the Second Circuit. 

Following briefing and oral arguments, the Second Circuit ruled in Mr. Brathwaite’s favor and vacated the removal order issued against him. The Second Circuit determined that the BIA’s adoption of the presumption of finality principle in J.M. Acosta and its application of that standard to Mr. Brathwaite’s case was arbitrary and unreasonable. Noting that “the criminal appeals process in New York proceeds at a different pace than federal removal proceedings,” the Second Circuit explained that the BIA’s holding produced significant practical problems, resulting in noncitizen criminal defendants risking deportation even while pursuing state-approved challenges to criminal convictions. 

The Second Circuit’s ruling in Mr. Brathwaite’s case stands to positively impact the removal proceedings of thousands of noncitizen criminal defendants in New York State, ensuring they can pursue appellate review of their criminal convictions without being deported from the country prior to the resolution of those appeals.