Leonel Morales-Alvarado v. Immigration and Naturalization Service

Morales-Alvarado appeals from the decision of the Board of Immigration Appeals (Board) denying him the relief of voluntary departure with respect to his order of deportation. Morales-Alvarado claims that the Board improperly considered his criminal conviction of the crime of indecent liberties, in exercising its discretion to deny his application for voluntary departure. Morales-Alvarado asserts that the conviction should not have been considered because it was pending appeal in state court and thus was not final. Subsequent to oral argument in the instant appeal, the Washington Court of Appeals affirmed the conviction of Morales-Alvarado. Therefore, we conclude that this appeal is moot and it is dismissed.

I

Morales-Alvarado, a citizen of Guatemala, entered the United States on December 21, 1976, as a visitor for business. He was authorized to remain in the country until January 21, 1977. He has remained in the United States since that time. In January 1978, Morales-Alvarado was convicted of petty theft for taking a hat valued at $1.35. The Immigration & Naturalization Service (INS) served Morales-Alvarado with an Order to Show Cause on August 16, 1978, alleging that…

dissenting:

I respectfully dissent. Federal courts have consistently held that a criminal conviction is final for immigration purposes only when direct appellate review of the conviction has been exhausted or waived. Hernandez-Almanza v. United States Department of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Marino v. INS, 537 F.2d 686, 692 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 , 96 S.Ct. 776 , 46 L.Ed.2d 638 (1976); Will v. INS, 447 F.2d 529, 532 (7th Cir. 1971). While the majority correctly notes that this prior authority does not address the precise question before us, I would adhere to the language of these cases and draw the line of finality at the point where all direct appeals, whether of right or discretionary, have been exhausted or waived. The common distinction made in the past has been that between direct appeals and collateral attacks. I see no sufficient reason to erode that distinction by ascribing to discretionary appeals the characteristics of a collateral attack. Perhaps the most important difference between the two categories of attack is that direct appeals, whether of right or discretionary,…

655 F.2d 172 Leonel MORALES-ALVARADO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 79-7554. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 10, 1980. Decided April 23, 1981. Rehearing and Rehearing En Banc Denied Aug. 28, 1981. Dan Stormer and Richard Smith, Spokane, Wash., for petitioner. Frank E. Devine, Dept. of Justice, Washington, D. C., on brief; Eric A. Fisher, Washington, D.C., argued for respondent. Petition to Review a Decision of The U. S. Immigration & Naturalization Service. Before WALLACE and CANBY, Circuit Judges, and QUACKENBUSH, * District Judge. WALLACE, Circuit Judge: 1 Morales-Alvarado appeals from the decision of the Board of Immigration Appeals (Board) denying him the relief of voluntary departure with respect to his order of deportation. Morales-Alvarado claims that the Board improperly considered his criminal conviction of the crime of indecent liberties, in exercising its discretion to deny his application for voluntary departure. Morales-Alvarado asserts that the conviction should not have been considered because it was pending appeal in state court and thus was not final. Subsequent to oral argument…