20-27 Brathwaite v. Garland 1 IN THE 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 AUGUST TERM 2020 6 7 ARGUED: JANUARY 5, 2021 8 DECIDED: JULY 1, 2021 9 10 No. 20-27 11 12 ALDWIN JUNIOR BRATHWAITE, AKA ALDWIN BRATHWAITE, AKA JOHN 13 THOMAS, AKA ALDWIN J. BRAITHWAITE, AKA ALDWIN JUNIOR BRATHWAITE 14 BYER, 15 Petitioner, 16 17 v. 18 19 MERRICK B. GARLAND, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. * 22 23 24 ________ 25 26 Petition for Review of a Decision by the Board of Immigration Appeals 27 A036-668-868 28 *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted for former Attorney General William P. Barr as Respondent. 20-27 Brathwaite v. Garland 1 ________ 2 3 4 Before: CALABRESI, RAGGI, AND CHIN, Circuit Judges. 5 6 7 ________ 8 9 Petitioner Aldwin Junior Brathwaite petitions for review of an order of 10 removability, entered by the Honorable Joy A. Merriman, U.S. Immigration Judge 11 (“IJ”), on June 11, 2019, and approved by the Board of Immigration Appeals 12 (“BIA”) on December 11, 2019. Because the BIA’s decision is premised on an 13 unreasonable construction of the Illegal Immigration Reform and Immigrant 14 Responsibility Act of 1996 (“IIRIRA”), we GRANT the petition for review and 15 REMAND the matter to the BIA for further proceedings consistent with this 16 opinion. 17 18 19 JOHN PENG, ESQ. (Nicholas J. Phillips, Esq., Joseph Moravec, Esq., on the 20 brief), Prisoners’ Legal Services of New York, Buffalo, New York, for 21 Petitioner. 22 KEITH I. MCMANUS, (Jessica E. Burns, on the brief), U.S. Department of 23 Justice, Office of Immigration Litigation, for Brian Boynton, Assistant 24 Attorney General, Civil Division, Washington, District of Columbia, 25 for Respondent. 26 MARK VORKINK (Paul Skip Laisure, on the brief), New York, New York, 27 for Appellate Advocates, The Legal Aid Society of Nassau County, The 2 20-27 Brathwaite v. Garland 1 Office of The Appellate Defender, and The Chief Defenders 2 Association of New York, Amici Curiae in support of Petitioner. 3 4 5 CALABRESI, Circuit Judge: 6 Under the Immigration and Nationality Act (“INA”), a noncitizen may be 7 ordered removed on the basis of a qualifying “conviction.” See 8 U.S.C. 8 § 1227(a)(2). Before 1996, the INA did not define “conviction.” But for decades, 9 federal courts and the BIA followed the principle, first set forth by the Supreme 10 Court in Pino v. Landon, 349 U.S. 901 (1955), that noncitizens cannot be removed 11 until their convictions have attained a sufficient degree of finality—that is, until 12 direct appellate review of their convictions has been exhausted or waived. When 13 Congress defined “conviction” in the Illegal Immigration Reform and Immigrant 14 Responsibility Act of 1996 (“IIRIRA”), it generally followed what courts had held 15 “conviction” meant, but it said nothing about the well-established finality 16 requirement. See 8 U.S.C. § 1101(a)(48)(A). 17 In a recent precedential decision, …
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