The firm helped its pro bono client the Immigrant Defense Project (“IDP”) obtain an important tactical victory before the United States Court of Appeals for the Third Circuit on an issue of exceptional importance to the client: preserving the “finality rule” for immigration purposes.
In January 2014, the Third Circuit published Orabi v. Attorney General recognizing that the “finality rule” is “alive and well” in the Third Circuit. 738 F.3d 535 (3d Cir. 2014). The finality rule provides that a criminal conviction does not attain a sufficient degree of finality for immigration purposes (and therefore cannot serve as a basis for deportation proceedings) until direct appellate review of the conviction has been exhausted or waived. In reaching its decision, the Third Circuit became the first circuit court to clearly recognize the continued viability of the finality rule since Congress’ 1996 overhaul of the immigration laws. Orabi positioned the Third Circuit as an important counterweight to several other circuit courts which have held directly, or in dicta, that the finality rule did not survive the 1996 amendments. For years, IDP has been working to obtain a precedential opinion of this sort from the circuit courts and considered theOrabi opinion vital to the organization’s interest in helping to ensure that the harsh consequences of deportation are not visited on immigrants (many of whom are lawful permanent residents with long and established roots in this country) on the basis of criminal convictions that may not withstand appellate review.
Several weeks after the Third Circuit entered its decision in Orabi, but before mandate had issued, Petitioner’s underlying criminal conviction was affirmed by the Second Circuit. As a result, the Attorney General sought rehearing, asking the Court to vacate altogether its precedential ruling for alleged lack of jurisdiction. Petitioner, whom the government had previously deported to Egypt, could not be located for service. IDP thus asked us to represent them in developing a strategy to oppose the government’s efforts to have this important decision vacated. Although the appellate rules do not permit answers to rehearing applications without the Court’s permission, we submitted an application seeking leave as amicus curiae to formally oppose the government’s rehearing request. In that application, we discussed the important policy interests that favor continued recognition of the finality rule and previewed our arguments that the government’s contention that events post-dating the Court’s opinion stripped the Court of jurisdiction was based on a fundamental misapprehension of Third Circuit law.
On March 27, 2014, relying on the case law we introduced on behalf of IDP, the Third Circuit denied the government’s rehearing application, leaving the Court’s precedential ruling on finality intact. This decision not only provides a direct benefit to many immigrants who may be threatened with deportation on the basis of wrongful criminal convictions, but stands as an important guidepost in IDP’s efforts to have the finality rule recognized in other courts across the nation.