Brathwaite v. Garland, No. 20-27 (2d Cir. 2021)
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The Second Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal based on petitioner's failure to offer sufficient evidence that his criminal conviction—filed after the initial period for filing a direct appeal expired—goes to the merits of his conviction. The court concluded that the BIA's decision was premised on an unreasonable construction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
The court held that the IIRIRA's definition of "conviction" is ambiguous and that the BIA reasonably determined that the finality requirement persists. However, the court need not determine whether the BIA may put limits on the finality requirement because, even assuming it may, the court held that the limitations the BIA imposed in Matter of J.M. Acosta, 27 I. & N. Dec. 420 (BIA 2018), are unreasonable. Therefore, the BIA's burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA. The court remanded for further proceedings.
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