2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-20-2005

Pinho v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3837

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-3837

 

GUMMERSINDO J. PINHO;

DANIELLE PINHO,

 Appellants

 v.

ALBERTO R. GONZALES,*

Attorney General of the United States;

MICHAEL CHERTOFF,* Secretary of the

Department of Homeland Security;

ANDREA QUARANTILLO, District Director

Newark District of the United States

Citizenship and Immigration Services;

DEPARTMENT OF HOMELAND SECURITY;

UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES

*Substituted pursuant to FED. R. APP. P. 43(c)

 
2

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 03-cv-06232)

District Judge: Honorable Dennis M. Cavanaugh

 

Argued September 15, 2005

Before: ROTH, McKEE and FISHER, Circuit Judges.

(Filed: December 20, 2005)

Thomas E. Moseley (Argued)

One Gateway Center, Suite 2600

Newark, NJ 07102

Attorney for Appellants

Susan C. Cassell (Argued)

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Attorney for Appellees

 

OPINION OF THE COURT

 
3

FISHER, Circuit Judge.

In this case we are asked to decide when a vacated

criminal conviction remains a “conviction,” and when it does

not, for purposes of determining an immigrant’s eligibility for

deportation. We conclude that the government may reasonably

draw a distinction between convictions vacated for rehabilitative

purposes and those vacated because of underlying defects in the

criminal proceedings, and we establish a categorical test to

guide this determination. Applying this test, we will reverse the

judgment of the District Court.

I.

A.

Petitioner Gummersindo Pinho, a native of Portugal, is

married to a United States citizen with whom he has two

children, who are also U.S. citizens. In February 1992, Pinho

was arrested and charged with three third-degree drug offenses

under New Jersey law: possession of cocaine (“Count I”),

possession with intent to distribute cocaine (“Count II”), and

possession with intent to distribute cocaine on or near school

property (“Count III”). Because he had no prior criminal record,

Pinho applied for admission into New Jersey’s “Pre-Trial

Intervention” program (“PTI”), under which criminal

proceedings would be postponed pending Pinho’s completion of

a rehabilitation program, at which point the charges would be
1

The PTI program worked in 1992 just as it does today:

once a defendant is accepted, the judge postpones all

proceedings against him for at most thirty-six months, after

which the judge must either dismiss the indictment, postpone

proceedings further, or restore proceedings. With respect to

dismissal, the relevant rule provides:

On the recommendation of the program director

and with the consent of the prosecutor and the

defendant, [“the designated judge shall”] dismiss

the complaint, indictment or accusation against

the defendant, such a dismissal to be designated

‘matter adjusted - complaint (or indictment or

accusation) dismissed.’

N.J. Rules Governing Criminal Practice, Rule 3-28 (1992

version).

The New Jersey Supreme Court has issued guidelines for

operation of PTI. Guideline 4 provides: “Enrollment in PTI

programs should be conditioned upon neither informal

admission nor entry of a plea of guilty. Enrollment of

defendants who maintain their innocence should be permitted

unless the defendant’s attitude would render pre-trial

intervention ineffective.” The accompanying comment

provided:

A PTI program is presented to defendants as an

4

dropped. Admission into PTI did not require an admission of

guilt.1
opportunity to earn a dismissal of charges for

social reasons and reasons of present and future

behavior, legal guilt or innocence

notwithstanding. . . . Within the context of

pretrial intervention, when and whether guilt

should be admitted is a decision for

counselors. . . . Neither admission of guilt nor

acknowledgment or responsibility is required.

Steps to bar participation solely on such grounds

would be an unwarranted discrimination.

N.J. Rules Governing Criminal Practice, Rule 3-28, Guideline

4, Comment (1992 version).

5

Pinho’s application to PTI was rejected, however. At the

time, the local state prosecutor’s office, acting in accordance

with a directive of the state Attorney General, had a per se rule

against accepting into PTI any defendant against whom there

was a viable case for possession with intent to distribute drugs

at or near a school. See State v. Caliguri, 726 A.2d 912, 921

(N.J. 1999). This rule was later invalidated by the New Jersey

Supreme Court as contravening the purposes of the statute

governing PTI. Id. Under the New Jersey Rules, appeal of

denials of PTI applications was permitted only following a

conviction or guilty plea. N.J. Rules Governing Criminal

Practice Rule 3.28(f), (g) (1992 version).

On August 17, 1992, Pinho pleaded guilty to Count I,

possession of cocaine. He was represented at the time of the

plea by the same attorney who helped him apply to PTI. Counts

II and III were dismissed. Pinho’s sentence was two years’
2

Eligibility, of course, does not guarantee acceptance,

which remained in the prosecutor’s discretion. Because of the

operation of the rule, though, Pinho was never even considered.

So while he might eventually have been rejected even with

effective assistance of counsel, he would not have been rejected

because of the rule. In this respect, Pinho’s 1992 PTI

application mirrors his 2000 adjustment of status application. In

each case a non-discretionary eligibility determination served as

the gatekeeper for a discretionary action.

6

probation, a substance abuse evaluation, an assessment of

$1,080, and the loss of his driving privileges for six months.

On June 2, 1997, some five years later, and after he had

served his sentence, Pinho, now represented by different

counsel, applied for post-conviction relief in New Jersey

Superior Court, contending that he had received ineffective

assistance of counsel in connection with his rejection from PTI.

The motion was timely, see N.J. Court Rule 3.22-12(a)

(providing that motions for post-conviction relief are timely

within five years). In the motion, Pinho alleged that his prior

counsel had failed to ascertain whether the conduct underlying

Count III had actually occurred near a school. It is undisputed

that while the building had previously been a school, it was, at

the time of the alleged crime, in fact not a school, but rather a

maintenance and storage building. Pinho contended that, had

this fact been known, he would not have been deemed ineligible

for PTI through the operation of the per se rule.2

 New Jersey

courts have held that counsel’s failure to establish PTI eligibility

can support ineffective assistance claims. See State v. Marrero,
3

The record does not contain a vacatur order other than

this statement from the bench. It is not disputed, however, that

the conviction was in fact vacated. Whether the subsequent

dismissal order may be treated as an imiplicit vacatur order, or

whether the judge’s statement from the bench was itself the

vacatur order is of little moment. A paper record merely

memorializes a judicial act, and the record is clear that the

judicial act was carried out: Pinho’s conviction was

“dismiss[ed], cancel[ed] . . . discharge[d] or otherwise

remove[d].” Sandoval v. I.N.S., 240 F.3d 577, 583 (7th Cir.

2001).

7

383 A.2d 131, 132 (N.J. Super. Ct. 1978); State v. Cruz,

No. A-5184-02T5 (N.J. Super. Ct. 2004) (unpublished).

The state did not file an answer to Pinho’s motion, and

the court held a hearing on his claim on March 10, 1998. At that

hearing, the court observed:

[The parties] have been dealing with this matter

for several months, the upshot of which was that

there would be an application by Mr. Pinho to PT-I. If acceptable then the matter would be

dismissed once he was placed in P-T-I – and since

Mr. Pinho has been accepted into P-T-I, I think

the previous judgment of conviction can be

vacated.

Transcript at 3, New Jersey v. Pinho, No.1009-6-92 (N.J. Super.

Ct. Mar. 10, 1998).3

 The prosecutor responded, “Very good,

Judge, I move for that dismissal if need be.” Id. By letter dated
8

May 1, 1998, the prosecutor’s office consented to Pinho’s

admission to PTI. The letter explained that “[t]his approval is

based upon the facts and circumstances of this case and this

defendant.” Letter from John N. Shaughnessy, Assistant

Prosecutor, County of Middlesex, New Jersey, to Ronald W.

Reba (May 1, 1998). All charges against Pinho were then

dismissed by order dated May 21, 1998. The order provided:

Upon application of Pretrial Intervention Program

for an Order to dismiss the above captioned . . .

indictments . . . pursuant to Rule 3:28 . . . the

Court having considered the report of the Pretrial

Intervention Program concerning the defendant’s

participation. . . . It is on this 21st day of May

1998 ORDERED that the . . . indictments . . . [be]

dismissed . . . [and] the clerk . . . is hereby

directed to mark the court record “Complaint

dismissed – matter adjusted.’

Order of Dismissal, New Jersey v. Pinho, No. 1009-6-92 (N.J.

Super. Ct. May 21, 1998).

B.

In January 2000, Pinho applied to the Newark District

Office of the Immigration and Naturalization Service (“INS”)

for an adjustment of his immigration status to “permanent

resident” under 8 U.S.C. § 1255, based upon his marriage to a

U.S. citizen. In a decision dated December 11, 2000, the INS

denied adjustment on the ground that Pinho was inadmissible to

the United States under 8 U.S.C. § 212(a)(2)(A)(i)(II), which
4

Neither the Newark District Office, the Office of

Administrative Appeals, the District Court, nor the government

on appeal, analyzes 8 U.S.C. § 1182(a)(2)(C), which provides

that

[a]ny alien who the consular or immigration

officer knows or has reason to believe is or has

been an illicit trafficker in any such controlled

substance or is or has been a knowing assister,

abettor, conspirator, or colluder with others in the

illicit trafficking in any such controlled substance,

is inadmissible.

We therefore express no opinion on how that provision would

apply in this case.

9

provides that “any alien convicted of, or who admits having

committed, or who admits committing acts which constitute the

essential elements of a violation of . . . any law or regulation of

a State . . . relating to a controlled substance . . . is

inadmissible.”4

 The agency reasoned that Pinho’s 1992 plea to

Count I in New Jersey met the definition of “conviction” in

§ 1011(a)(48)(A). That section provides:

The term ‘conviction’ means, with respect to an

alien, a formal judgment of guilt of the alien

entered by a court, or, if adjudication of guilt has

been withheld, where (i) a judge or jury has found

the alien guilty or the alien has entered a plea of

guilty or nolo contendere or has admitted

sufficient facts to warrant a finding or guilt, and
5

On June 30, 2004, and in the context of the previously

filed action, Pinho filed a motion for injunctive relief, seeking

an order directing the Newark office to grant him an

employment authorization form, which was required by New

Jersey for renewal of his driver’s license. Pinho argued that

10

(ii) the judge has ordered some form of

punishment, penalty or restraint on the alien’s

liberty to be imposed.

In reaching its decision, the agency relied heavily upon a Board

of Immigration Appeals (“BIA”) decision, In re Roldan, 22 I. &

N. Dec. 512 (B.I.A. 1999), in which the agency had held that

“an alien is considered convicted for immigration purposes upon

the initial satisfaction of the requirements of [8 U.S.C. §

1101(a)(48)(A)] and that he remains convicted notwithstanding

a subsequent state action purporting to erase all evidence of the

original determination of guilt through a rehabilitative

procedure.” Roldan, 22 I. & N. Dec. at 523. The Newark

District Director certified his decision to the Associate

Commissioner for Examinations; the Associate Commissioner

affirmed on June 28, 2001. The INS Office of Administrative

Appeals affirmed on July 25, 2002.

C.

On December 31, 2003, Pinho and his wife filed a

complaint in District Court seeking a declaratory judgment that

the denial of his adjustment of status was arbitrary, capricious

and unlawful because his vacated state conviction should no

longer be a bar to his eligibility for adjustment.5
denial of the authorization form was contrary to the applicable

regulation governing eligibility, 8 C.F.R. § 274a.12(c)(9). The

parties agree that the employment authorization has been

granted, mooting any injunctive relief we might order. See

Letter from Thomas E. Moseley to Marcia Waldron, Clerk of

the Court, United States Court of Appeals for the Third Circuit,

Sep. 9, 2005; letter from Christopher J. Christie, United States

Attorney for the District of New Jersey, to Marcia Waldron,

Clerk of the Court, United States Court of Appeals for the Third

Circuit, Sep. 9, 2005. We therefore do not have properly before

us the question of whether the agency violated 8 C.F.R.

§ 274a.12(c)(9) when it denied his application for employment

authorization.

11

Pinho’s argument in the District Court hinged on the

status of his conviction under 8 U.S.C. § 1101(a)(48)(A). The

BIA interprets § 1101(a)(48)(A) to draw a distinction between

convictions vacated because of the immigrant’s subsequent

participation in a rehabilitation program, and convictions

vacated because of underlying substantive or constitutional

defects. See In re Pickering, 23 I. & N. Dec. 621 (B.I.A. 2003).

Pinho argued that his conviction had been vacated in settlement

of his ineffective assistance of counsel claim, rather than as part

of a rehabilitation program. Pinho relied largely on three cases:

Herrera-Iniro v. INS, 208 F.3d 299 (1st Cir. 2000), In re

Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (B.I.A. 2000), and

Pickering, 23 I. & N. Dec. at 621.

In Herrera-Iniro, an immigrant argued that his prior

conviction should not be operative for immigration purposes,

although he conceded that it had been vacated through a
6

Article 440 of the New York Criminal Procedure Law,

N.Y. Crim. Proc. Law § 440, pertains to post-judgment motions.

12

rehabilitative program. The court reviewed the legislative

history of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,

110 Stat. 3009-546 (1996), and rejected the argument, noting

that “[t]he emphasis that Congress placed on the original

admission of guilt plainly indicates that a subsequent dismissal

of charges, based solely on rehabilitative goals and not on the

merits of the charge or on a defect in the underlying criminal

proceedings, does not vitiate that original admission.” HerreraIniro, 208 F.3d at 306 (emphasis added).

In Rodriguez-Ruiz, decided a few months after HerreraIniro, the BIA suspended the termination proceedings of an

immigrant who had pleaded guilty to a charge of sexual abuse

under New York law. Months after the plea, the court that had

entered the plea entered an order explicitly vacating it; its order

stated:

It is ORDERED, that pursuant to CPL 440,[6

] the

judgment had in this Court on March 24, 1999

based upon a plea colloquy . . . convicting said

Defendant of the crime of Sexual Abuse 3rd and

the sentence of one (1) year probation are in all

respects vacated, on the legal merits, as if said

conviction had never occurred and the matter is

restored to the docket for further proceedings.
7

The BIA refused, as the government urged, to “go

behind” the state court judgment and question whether the state

court had followed its own laws in entering the vacatur.

Rodriguez-Ruiz, 22 I. & N. Dec. at 1379.

13

Rodriguez-Ruiz, 22 I. & N. Dec. at 1379. The government

argued that this was merely a Roldan situation; the BIA

disagreed:

[W]e find that the order of the New York court

does not constitute a state action which purports

to expunge, dismiss, cancel, vacate, discharge, or

otherwise remove a guilty plea or other record of

guilt or conviction by operation of a state

rehabilitative statute. The New York criminal

law provision under which the respondent’s

conviction was vacated is neither an expungement

statute nor a rehabilitative statute.

Id. at 1379-80 (internal citation omitted) (emphasis added).7

Finally, in Matter of Pickering, 23 I. & N. Dec. 621

(B.I.A. 2003), the BIA explicitly endorsed the distinction

suggested in Herrera-Iniro. After reviewing the existing legal

landscape, the BIA held:

In accord with the federal court opinions applying

the definition of a conviction at section

101(a)(48)(A) of the Act, we find that there is a

significant distinction between convictions

vacated on the basis of a procedural or substantive
14

defect in the underlying proceedings and those

vacated because of post-conviction events, such

as rehabilitation or immigration hardships. Thus,

if a court with jurisdiction vacates a conviction

based on a defect in the underlying criminal

proceedings, the respondent no longer has a

“conviction” within the meaning of section

101(a)(48)(A). If, however, a court vacates a

conviction for reasons unrelated to the merits of

the underlying criminal proceedings, the

respondent remains “convicted” for immigration

purposes.

Pickering, 23 I. & N. Dec. at 624.

The District Court deemed Pinho’s vacated conviction a

“conviction” for immigration purposes, reasoning that “Pinho

pled guilty in 1992, served his sentence and now asks this Court

to ignore Congressional intent and case law to order the

[Department of Homeland Security] to grant him an

employment authorization form. Based on these facts, this

Court cannot grant [Pinho’s] request.” Pinho v. Ashcroft, No.

03cv6232, at 11 (D.N.J. Aug. 9, 2004). Expressing its suspicion

that Pinho’s ineffective assistance claim was simply an attempt

to engineer a better position on his adjustment of status

application, the District Court granted the government’s motion

for summary judgment, and Pinho appealed.

II.
8

On March 1, 2003, the INS’s functions were transferred

to the Bureau of Immigration and Customs Enforcement

(“BICE”) and the U.S. Customs and Immigration Service

(“USCIS”) of the United States Department of Homeland

Security (“DHS”). See Knapik v. Ashcroft, 384 F.3d 84, 86 n.2

(3d Cir. 2004) (citing Homeland Security Act of 2002, Pub. L.

No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, codified at 6

U.S.C. §§ 251, 271 & 291). Faced with this profusion of

administrative bodies, we will adopt “the agency” as shorthand

for the DHS and its sub-units.

15

Neither the parties nor the District Court questioned

whether jurisdiction existed in that court, so we must therefore

consider the question anew. See Soltane v. Immigration and

Naturalization Service, 381 F.3d 143 (2004) (“[W]e are required

to consider the issue of subject matter jurisdiction, even though

neither party contends that it is lacking here.”) (citing Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). The

agency decision at issue here was made by the Bureau of

Immigration and Customs Enforcement (“BICE”)8

 Newark

District Office, and affirmed by the BICE Administrative

Appeals Office (“AAO”). There was no hearing before an

Immigration Judge (“IJ”), and no appeal to the BIA. We must

ascertain whether the District Court had jurisdiction to review

a decision by the AAO in these circumstances, and if so,

whether it had jurisdiction to review this particular decision.

We hold that on these facts the District Court had jurisdiction

under 28 U.S.C. § 1331 and Section 704 of the Administrative

Procedure Act (“APA”), 5 U.S.C. § 704, to review the AAO’s

determination of Pinho’s statutory eligibility for adjustment of

status.
9

Section 1252(a)(2)(B) of Title 8 of the United States

Code, which also strips the district courts of jurisdiction over

discretionary agency determinations, is in that respect at least

partly duplicative of the APA requirement.

16

To support APA jurisdiction, the agency action must be

final, it must adversely affect the party seeking review, and it

must be non-discretionary.9

 We consider these requirements in

turn.

Jurisdiction under the APA is available for review of

“final agency action.” The Supreme Court has explained the

finality requirement as follows:

As a general matter, two conditions must be

satisfied for agency action to be “final”: First, the

action must mark the “consummation” of the

agency’s decisionmaking process, Chicago &

Southern Air Lines, Inc. v. Waterman S. S. Corp.,

333 U.S. 103, 113, 92 L. Ed. 568, 68 S. Ct. 431

(1948)--it must not be of a merely tentative or

interlocutory nature. And second, the action must

be one by which “rights or obligations have been

determined,” or from which “legal consequences

will flow,” Port of Boston Marine Terminal Assn.

v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,

71, 27 L. Ed. 2d 203, 91 S. Ct. 203 (1970).

Bennett v. Spear, 520 U.S. 154, 178 (1997). The agency action

at issue here satisfies these two conditions.
10The cursory treatment of exhaustion by the Seventh

Circuit in McBrearty v. Perryman, 212 F.3d 985 (7th Cir. 2000),

17

Finality requires exhaustion of administrative remedies.

If there remain steps that the immigrant can take to have an

action reviewed within the agency, then the action is not final

and judicial review is premature. In this case, the agency

offered no further procedures that Pinho could invoke to have

his claim of statutory eligibility heard. There is no provision for

BIA review of an AAO status-adjustment eligibility decision.

See 8 CFR § 3.1(b). If the agency institutes removal

proceedings against an immigrant, then the immigrant may

renew his or her application during those proceedings, 8 C.F.R.

§ 245.2, but we do not find this possibility sufficient to render

the AAO’s eligibility determination “tentative or interlocutory”

in this case.

The reason is simple: if the agency does not seek to

deport the immigrant, there can never be an appeal within the

agency by which any higher level of administrative authority

can be invoked to review the legal determination made by the

AAO. Because applications for adjustment of status can be

renewed, and are often made in the first instance, during

deportation proceedings, those proceedings will in some cases

address the issues considered by the AAO, see, e.g., HerreraInirio v. INS, 208 F.3d 299, 303 (1st Cir. 2000) (question

whether vacated conviction constituted “conviction” under §

1011(a)(48)(A) addressed during deportation hearing), so that

judicial review would be barred, see, e.g., Howell v. INS, 72

F.3d 288, 293 (2d Cir. 1995) (finding jurisdiction lacking once

deportation proceedings had begun).10 However, in this case,
is not on point. In that case, the plaintiffs “sought judicial

review of the refusal by the district director of the immigration

service to adjust their status. . . .” Id. at 986 (emphasis added).

The Seventh Circuit dismissed the complaint for want of

jurisdiction on the ground that “[t]he suit was premature, since,

as the plaintiffs acknowledge, they could obtain review of the

district director’s decision by the Board of Immigration Appeals

if and when the immigration service institutes removal (i.e.

deportation) proceedings against them. They have thus failed to

exhaust their administrative remedies.” Id. (internal citation

omitted). But the Seventh Circuit confuses the existence of a

claim with the exhaustion of administrative remedies. The

McBrearty plaintiffs were not challenging a legal determination

of their statutory eligibility for adjustment, but rather a refusal

to adjust their status. This distinction makes all the difference.

The refusal to adjust – a discretionary determination – was (as

the court notes) barred by § 1252(a)(2)(B). While it is true that

the plaintiffs could have renewed their adjustment application in

removal proceedings, that fact is irrelevant to the District

Court’s lack of jurisdiction: under Section 1252(a)(2)(B) the

court had no jurisdiction because the plaintiffs had no claim at

all, not because they had failed to exhaust a valid claim.

McBrearty is not about exhaustion, and is redeemed from

making law without proper analysis only by its facts; it surely

cannot be said to stand for the proposition that immigrants

stating a legal claim – one not barred by § 1252 – must always

wait for deportation proceedings.

18

Pinho’s adjustment of status application was not filed because

of pending deportation proceedings, but rather because of his

marriage to a U.S. citizen. Because the Department of
19

Homeland Security (“DHS”) did not provide an avenue for

administrative appeal of the AAO decision, Pinho had no further

opportunity to challenge the legality of the decision within the

agency, and would have none at all, were he forced to await

deportation proceedings that the agency may or may not choose

to institute. In Howell, the Second Circuit left open the question

of jurisdiction where there were no pending deportation

proceedings in which the immigrant could raise her adjustment

claims. Subsequently, the district court in Chen v. Reno, 1997

U.S. Dist. LEXIS 8072 (S.D.N.Y. 1997), was faced with that

question – the question we are faced with in this case. In Chen,

the District Court found that jurisdiction did lie, explaining:

A litigant has a right to a prompt resolution of

decisions concerning his status affording him the

opportunity to make personal, educational, or

career plans. . . . Chen has exhausted his

administrative remedies because as a denied

applicant not in deportation proceedings, he has

no further options under the regulatory or

statutory scheme to force a prompt decision by the

INS.

Id. at *6-7.

In our view, Chen is a proper application of the guidance

given by the Supreme Court in Darby v. Cisneros, 509 U.S. 137

(1993), and McCarthy v. Madigan, 503 U.S. 140 (1992). Darby

held that agency action is final when the “aggrieved party has

exhausted all administrative remedies expressly prescribed by

statute or agency rule. . . . [W]here the APA applies, an appeal
20

to ‘superior agency authority’ is a prerequisite to judicial review

only when expressly required by statute or when an

administrative rule requires appeal before review and the

administrative action is made inoperative pending that review.”

Darby, 509 U.S. at 154. In the case at bar, not only was there no

administrative remedy “expressly prescribed,” but the applicable

regulation expressly provided that there was no administrative

appeal available. And the AAO’s decision was “operative”

from the moment it was entered. A ruling that Pinho must wait

for possible future deportation proceedings in order to challenge

the AAO’s legal determination would sit ill at ease with Darby.

We hold that an AAO decision is final where there are no

deportation proceedings pending in which the decision might be

reopened or challenged. But even if the possibility of renewing

an adjustment application in future deportation proceedings

were thought to cast doubt on the finality of an AAO decision,

this case falls into one of the categories “in which the interests

of the individual weigh heavily against requiring administrative

exhaustion,” McCarthy, 503 U.S. at 146, namely, circumstances

in which an “indefinite timeframe for administrative action,” id.

at 147, results in prejudice to the individual who must await that

action. The decision whether or not to institute deportation

proceedings is entirely within the discretion of the agency.

There are no steps that Pinho can take to force the question in

order to have his claim resolved. If the only route to the courts

is through deportation proceedings, then the agency retains sole

control over whether an individual’s purely legal claim – one

which has not been made non-reviewable by statute – may ever
11The Fifth Circuit, in Cardoso v. Reno, 216 F.3d 512

(5th Cir. 2000), held that denials of adjustment of status may

reach the courts only through review of deportation proceedings.

Because the court did not attempt to distinguish between denials

of adjustment of status applications, and legal determinations of

eligibility for status adjustment, it is not clear whether the

Cardoso holding has much to do with the case at hand here. In

Cardoso, the court considered three separate jurisdictional

dismissals of immigration claims. One of them involved a claim

that an application for adjustment of status had been wrongly

denied as a matter of law. The applicant had filed for

adjustment prior to her twenty-first birthday. However, the

agency did not rule on the application for three years, at which

point it denied the application on the grounds that the applicant

was no longer eligible because she was no longer a minor. Id.

at 514. The court held that the applicant could not invoke

judicial review because the agency decision was not final,

although it conceded that there were no deportation proceedings

pending against the applicant. Id. at 518. We think it important

as a matter of administrative law to distinguish between

(reviewable) non-discretionary legal determinations, and (nonreviewable) discretionary determinations. Because the Fifth

Circuit did not do so, we cannot tell with certainty whether we

are in conflict on the question resolved in this case.

12See, e.g., Cynthia R. Farina, Statutory Interpretation

and the Balance of Power in the Administrative State, 89

21

be brought before the courts.11 Such a result would be plainly

at odds not only with the APA, but also with broader principles

of separation of powers.12
Colum. L. Rev. 452, 495-96 (1989) (“By the time of the

ratification, the prevailing understanding of separation of

powers was no longer a simplistic call for absolute segregation

of conceptually distinct functions. The experience between

independence and the Constitutional Convention had caused

American political theorists to rethink the nature of

governmental authority. They came to conclude that . . . all

power in government shared the same fundamental quality: it

was dangerous unless adequately offset and controlled. And so

. . . the words ‘separation of powers’ came to connote something

far more subtle and intricate than a mere, abstractly logical

division. The phrase expressed the expectation that, through the

carefully orchestrated disposition and sharing of authority,

restraint would be found in power counterbalancing power.”).

22

It is also apparent that legal consequences flow directly

from the determination that Pinho was not eligible for

adjustment of status because of his prior conviction. In addition

to the ineligibility determination itself, which prevented him

from being considered for adjustment, the AAO’s ruling had as

a direct result the subsequent denial by the District Office of

Pinho’s application for employment authorization. That

authorization was required, inter alia, for the renewal of Pinho’s

driver’s license and for his continued employment. Both the

agency’s obligations – to consider Pinho’s application for

adjustment – and Pinho’s rights – to be considered for

adjustment, and to renew his driver’s license – were determined

by the AAO’s ruling. The determination itself and the denial of

the employment authorization are clear adverse effects, and raise

the possibility that Pinho “may suffer irreparable harm if unable

to secure immediate judicial consideration of his claim,”
23

McCarthy, 503 U.S. at 147, if he is prohibited from driving or

working while awaiting the uncertain possibility of future

agency proceedings.

We must also ask whether the action at issue here was

discretionary. It is important to distinguish carefully between a

denial of an application to adjust status, and a determination that

an immigrant is legally ineligible for adjustment of status. This

distinction is central to the question of subject-matter

jurisdiction, and is easy to elide. Indeed, such distinctions are

crucial to administrative law generally; the framework of

judicial review of agency action that has evolved over the past

half-century is grounded in a sharp distinction between

decisions committed to agency discretion, and decisions,

whether “ministerial” or “purely legal,” governed directly by the

applicable statute or regulation. See, e.g., Norton v. Southern

Utah Wilderness Alliance, 542 U.S. 55 (2004); Webster v. Doe,

486 U.S. 592 (1988). Whatever the label, our caselaw

distinguishes between actions which an agency official may

freely decide to take or not to take, and those which he is

obligated by law to take or not to take. In the case of adjustment

of status, an eligible immigrant may have his application denied

within the discretion of the agency. But the immigrant’s

eligibility itself is determined by statute. To treat all denials of

adjustment as discretionary, even when based on eligibility

determinations that are plainly matters of law, is to

fundamentally misunderstand the relationship between the

executive and the judiciary.

In Soltane, 381 F.3d at 143, we considered the question

whether an AAO determination of statutory eligibility for a
24

particular immigration classification is discretionary. We held

that it is not. In that case, Camphill Soltane, a non-profit

organization filed a petition on behalf of an employee for

classification as a special religious worker. The District Office

denied the petition, and Soltane appealed to the AAO, which

affirmed the District Office. Soltane then sought review of the

AAO decision in district court. We held that, under the APA

and 8 U.S.C. § 1252(a)(B)(ii), review of AAO decisions is

within the jurisdiction of the district court so long as those

decisions are not committed to agency discretion, and that the

determination of whether Soltane met the specific eligibility

criteria set out in the governing statute was not discretionary.

Soltane, 381 F.3d at 147-48. Since Soltane, the REAL ID Act,

Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), has further

restricted the jurisdiction of the district courts to review

discretionary agency actions. Non-discretionary actions,

however, and purely legal determinations made by the agency,

remain subject to judicial review. See, e.g., Sepulveda v.

Gonzales, 407 F.3d 59, 63 (2d Cir. 2005)

(“[Section]1252(a)(2)(B) does not bar judicial review of

nondiscretionary, or purely legal, decisions. . . .”).

Determination of eligibility for adjustment of status –

unlike the granting of adjustment itself – is a purely legal

question and does not implicate agency discretion. The

determination at issue here, whether a prior conviction precludes

eligibility for adjustment of status, was also at issue in

Sepulveda. In that case, the Second Circuit held that statutory

restrictions on the jurisdiction of district courts to hear

challenges to removal orders and other discretionary actions do

not affect the district courts’ “jurisdiction to determine whether
13Having concluded that jurisdiction exists under the

APA, we think it inadvisable to speculate, in the absence of

briefing, about alternative jurisdictional avenues by which AAO

decisions might be reviewed. We will await cases which in

which the parties contest jurisdiction and put the issue squarely

before us.

25

[the statutory provision] is applicable, e.g., whether the

petitioner is in fact an alien, whether he has in fact been

convicted, and whether his offense is one that is within the

scope of [one of the enumerated sections].” Sepulveda, 407

F.3d at 63 (citing Santos-Salazar v. U.S. Dep’t of Justice, 400

F.3d 99, 104 (2d Cir. 2005)). The determination at issue here is

precisely such a determination: whether under the applicable

statutory language as interpreted by the BIA, Pinho was

“convicted” so as to render him ineligible for adjustment of

status. This is a legal question, not one committed to agency

discretion.

The agency action at issue here was final and nondiscretionary, it adversely affected Pinho, and it has not been

made non-reviewable by statute. Under the APA, therefore,

Pinho is “entitled to judicial review” of the AAO’s decision.13

Because the District Court had jurisdiction to review the

AAO decision, we have jurisdiction over this appeal under 28

U.S.C § 1291. We exercise plenary review of the District

Court’s statutory interpretation, but afford deference to a

reasonable interpretation adopted by the agency. See Acosta v.

Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003). It is the agency’s

burden, however, to establish the facts supporting
26

inadmissibility “by clear, unequivocal and convincing

evidence.” See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.

2001).

The question before us is whether the terms of the order

vacating Pinho’s 1992 conviction were such as to remove that

conviction from the scope of 8 U.S.C. § 1101(a)(48)(A), which,

in conjunction with 8 U.S.C. § 1182(a)(2)(A), governs the

admissibility of aliens to the United States.

III.

A.

When the Immigration and Nationality Act was first

passed, it lacked a definition of the term “conviction.” The INS

relied on state law in determining whether an immigrant was

“convicted.” See Roldan, 22 I. & N. Dec. at 514-15. State

convictions that were subsequently vacated were accordingly

not treated as “convictions” for immigration purposes. The

agency was increasingly bedeviled by the diversity of state

rehabilitative programs and the resulting difficulty in fashioning

a uniform national immigration policy with respect to prior

convictions. In In re Ozkok, 19 I. & N. Dec. 546 (B.I.A. 1988),

the BIA adopted a three-part definition of “conviction for the

express purpose of evaluating diverse state rehabilitative

programs by a common measure.

When Congress included a definition of “conviction” in

the 1996 amendments to the INA, it used, almost verbatim, the
14See Ozkok, 19 I. & N. Dec. at 551-52. The third part of

the test, which was omitted from the statutory definition, dealt

with pre-judgment probation, and provided that such probation

would be sufficient for a “conviction” if “a judgment of

conviction or adjudication of guilt may be entered if the person

violates the terms of the probation . . .” Id. at 552.

27

first two parts of the Ozkok test. The statutory definition

provides in its entirety:

The term “conviction” means, with respect to an

alien, a formal judgment of guilt of the alien

entered by a court or, if adjudication of guilt has

been withheld, where –

i) a judge or jury has found the alien guilty or the

alien has entered a plea of guilty or nolo

contendere or has admitted sufficient facts to

warrant a finding of guilt, and

ii) the judge has ordered some form of

punishment, penalty, or restraint on the alien’s

liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A).14

The new definition is disjunctive, encompassing at least

two possible procedural contexts. The first disjunct is “a formal

judgment of guilt of the alien entered by a court.” The meaning
28

of this clause is plain enough, echoing as it does the dictionary

definition, see Webster’s Third New International Dictionary at

499 (“. . . the act of proving, finding, or adjudging a person

guilty of an offense or crime.”), and thus offers no solution to

the problem of withheld judgments. That job is handled by the

second disjunct – those situations in which “adjudication of guilt

has been withheld.” “Withhold” means “. . . to desist or refrain

from granting . . . to keep in one’s possession or control.”

Webster’s Third New International Dictionary at 2627. The

definition provides that in situations in which the judge refrains

from granting a judgment of conviction, the defendant will

nonetheless stand “convicted” for immigration purposes if he

has pleaded or been found guilty or admitted sufficient facts to

support a finding of guilt, and the judge has imposed some

penalty upon him. In our recent decision in Acosta v. Ashcroft,

341 F.3d 218 (3d Cir. 2003), we considered whether the

definition covered a defendant who pleaded nolo contendere and

completed a period of probation, and whose indictment was

subsequently dismissed. We accepted the BIA’s position, as set

forth in Roldan, 22 I. & N. Dec. 512, that the new definition

requires treating a person in that situation as “convicted.”

Section 1101(a)(48)(A), thus, by its terms and by the

BIA’s interpretation, plainly encompasses at least those

situations in which an alien has a judgment of guilt entered by

a court, and those in which the judgment of guilt was never

entered because it was withheld, but where the alien has pleaded

or admitted sufficient facts, and some penalty was imposed.

There remains the question of how the statute applies to
15For our purposes here, we will treat the terms “vacated”

and “expunged,” which appear variously in the BIA opinions, as

synonymous. The salient procedural situation is one in which

a conviction is voided or invalidated, “dismiss[ed], cancel[ed]

. . . discharge[d] or otherwise remove[d],” Sandoval v. I.N.S.,

240 F.3d 577, 583 (7th Cir. 2001), whatever the label, and

whatever the subsequent availability of the record of the

conviction.

16Cf. Acosta, 341 F.3d at 226 n.6 (“[W]e infer a

congressional intent not to incorporate . . . a distinction

[“between rehabilitative statutes that defer[] adjudication and

those which expunge[] a prior admission or adjudication of

29

convictions that are imposed but subsequently vacated.15 We

have not had occasion to review the agency’s interpretation of

§ 1101(a)(48)(A) with respect to vacated convictions, or with

respect to distinctions among vacated convictions.

Nothing in the statute specifically addresses vacated

convictions. Clearly they are not convictions that have been

withheld. If they are covered, then, it will be under the first

disjunct: “a formal judgment of guilt of the alien entered by a

court.” Undoubtedly a conviction that is later vacated by a court

must have been initially entered by a court. The statute is

entirely silent with respect to the subsequent procedural history

of a “judgment entered by a court,” and the undoubted

congressional purpose of closing the “withheld judgment”

loophole tells us nothing whatsoever about what Congress’s

purpose was with respect to vacaturs, or whether it had any

purpose at all in that regard.16
guilt”] into the INA, but we do not infer that the elimination of

such a distinction was the sole purpose of passing the revised

definition of conviction in Section 101(a)(48)(A).”

17It is conceivable, of course, that under § 1182(a)(2)(A)

an immigrant might have admitted committing the relevant acts

even where the § 1101(a)(48)(A) definition of “conviction” does

not encompass the circumstances of his conviction. We need

not decide this question here, because in this case, the admission

and the guilty plea are one and the same. Had he been admitted

to the PTI program, he need not have admitted anything.

30

The statutory provision governing inadmissibility, 8

U.S.C. §1182(a)(2)(A), provides that “any alien convicted of, or

who admits committing acts which constitute the essential

elements of . . . a violation of . . . any law or regulation of a

State . . . is inadmissible.”17 However broad that language may

appear, the agencies charged with implementing the statute have

never read it to state a blanket deportability rule. The BIA’s

current interpretation distinguishes between what we may call

“rehabilitative” vacaturs and “substantive” vacaturs. The

agency’s position is that

if a court with jurisdiction vacates a conviction

based on a defect in the underlying criminal

proceedings, the respondent no longer has a

“conviction” within the meaning of section

101(a)(48)(A). If, however, a court vacates a

conviction for reasons unrelated to the merits of

the underlying criminal proceedings, the
18Our decision in Acosta pertains only to deferred

judgments; as we noted, the “charges against [Acosta] were

ultimately dismissed without any adjudication of guilt.” 341

F.3d at 221.

31

respondent remains “convicted” for immigration

purposes.

Pickering, 23 I. & N. Dec. at 624.

The BIA, in the cases leading up to Pickering, was faced

with applying the new definition to three distinct sets of

circumstances. The easy cases are those like Roldan, in which

the judgment of guilt is never entered, but is withheld pending

completion of a rehabilitative program. These cases are

straightforwardly covered by the statutory definition, and

Roldan breaks no new ground. The second category are cases

in which a judgment is entered, but later vacated explicitly in

order to prevent deportation or other federal immigration

consequences. Pickering considered this type of case, and held

the conviction to remain in force under the definition. The third

category are cases in which a judgment is entered, but later

vacated because of substantive defects in the initial proceeding.

Rodriguez-Ruiz was such a case, and the BIA held the

conviction not to fall within the scope of the definition.

The BIA, in short, interprets §§ 1148 and 1182 to create

a distinction between vacated convictions based on the reasons

for the vacatur. We have not yet decided whether the distinction

drawn by the agency between rehabilitative and substantive

vacaturs is a reasonable one in light of the statutory language,18
32

nor have we decided – as we must in this case – how we, and the

agency, are to tell the difference.

B.

We will not disturb an agency’s settled, authoritative

interpretation of a statute it is charged with implementing unless

that interpretation is plainly unreasonable in light of the plain

language of the statute taken as a whole. Chevron, U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984);

United States v. Mead Corp., 533 U.S. 218, 229-32 (2001). The

most comprehensive explanation of the agency’s interpretation

is found in Roldan, 22 I. & N. Dec. at 515-20. Relying on the

joint conference report, the BIA noted the “Congressional intent

that even in cases where adjudication is ‘deferred,’ the original

finding or confession of guilt is sufficient to establish a

‘conviction’ for purposes of the immigration laws.” Roldan, 22

I. & N. Dec. at 518 (quoting H.R. Conf. Rep. No. 104-828, at

224 (1996)). The BIA then analogized from deferred

adjudications to vacated convictions, and discerned a “clear

indication that Congress intends that the determination of

whether an alien is convicted for immigration purposes be fixed

at the time of the original determination of guilt, coupled with

the imposition of some punishment.” Roldan, 22 I. & N. Dec.

at 521. The statute, of course, says nothing about vacated

convictions. Still less does the statute, or the legislative history,

address the distinction between rehabilitative and substantive

vacaturs. Nor, finally, was the question of vacated convictions

properly before the BIA in Roldan: Roldan’s judgment was

deferred, not vacated. Nonetheless, the BIA opined that “it

simply would defy logic for us, in a case concerning a
19Some commentators have pointed out that state-deferred

adjudications and state expungement statutes “are like apples

and oranges,” because while an expungement is a state’s final

determination of a person’s legal status, “[d]eferring

adjudication of guilt . . . simply represents an initial step that

may [or may not] lead to formal expungement.” James A. R.

Nafziger & Michael Yimesgen, The Effect of Expungement on

Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930

(2003). It is certainly true that deferred judgments and

expungements are different, and it may well be that a sound

immigration policy would take that difference into account, but

we do not sit in judgment of the soundness of immigration

policy: the question before us is simply whether the language

of § 1101(a)(48)(A) may reasonably be read by the agency as

encompassing both.

33

conviction in a state which effects rehabilitation through the

technical erasure of the record of conviction, to provide greater

deference to that state’s determination that a conviction no

longer exists [than to a state which “never considered him

convicted”].” Roldan, 22 I. & N. Dec. at 521. By this

inference, the BIA corralled within § 1101(a)(48)(A) all postconviction expungement procedures that are analogous to

withholding judgment.19 This analogy paves the road from

Roldan to Pickering. We find the BIA’s logic not unreasonable:

to parse the difference between those past determinations of

guilt declared “no longer to exist” and those declared “never to
20This is the jurisprudential cousin of the “grandfather”

time-travel hypothetical: would it be possible to go back in time

and murder one’s own grandfather? Does a court – even one of

general jurisdiction – have the power to declare that an earlier

event never happened? See, e.g., Hon. Leon R. Yankwich, The

Federal Penal System, 10 F.R.D. 539, 555 (1950) (suggesting

that following expungement, a person can “claim truthfully that

he has never been convicted of a felony”).

34

have existed” is to follow the rabbit into a metaphysical hole

where courts rightly fear to tread.20

Roldan’s holding is expressly limited to convictions

vacated under “rehabilitative procedure[s]”; the BIA

emphasized that its decision

does not address the situation where the alien has

had his or her conviction vacated by a state court

on direct appeal, wherein the court determines

that vacation of the conviction is warranted on the

merits, or on grounds relating to a violation of a

fundamental statutory or constitutional right in the

underlying criminal proceedings.

Roldan, 22 I. & N. Dec. at 523. In Rodriguez-Ruiz, the BIA

takes it as given that such a vacated conviction would not be a

conviction under § 1101(a)(48)(A). There was little need to

explain that assumption, because the INS did not argue

otherwise, contending only that the vacatur at issue was not

“warranted on the merits.”
21Lest the significance of this exception be overestimated,

we note that although Pinho’s offense was a drug offense, the

above-noted exception referred only to rehabilitative vacaturs.

Pinho’s claim, by contrast, is that his was not a rehabilitative

vacatur.

35

The distinction between substantive and rehabilitative

vacaturs is rooted in the history of immigration enforcement.

That history is relevant both to our review of the reasonableness

of the agency interpretation of the statute, because the statutory

language was adopted against the background of consistent

agency practice with respect to vacated convictions. The BIA

held as early as 1943 that an expunged conviction was not a

“conviction” for immigration purposes, and adhered to that

position with only occasional exceptions until Roldan. See In re

V–, No. 56033/701 (B.I.A. 1943); In re D–, 7 I. & N. Dec. 670,

674 (1958) (where a conviction has been expunged, “there has,

as a matter of law, been no conviction for immigration

purposes”); In re G–, 9 I. & N. Dec. 159, 169 (B.I.A. 1960)

(Attorney General’s opinion) (“Pino v. Landon [349 U.S. 1

(1959) (per curiam reversal of First Circuit determination that a

vacated state conviction was a conviction for immigration

purposes)] would seem, therefore, to make it an a fortiori

conclusion in a nonnarcotics case that an expungement of an

alien’s conviction under section 1203.4 of the California Penal

Code withdraws the support of that conviction from a

deportation order under section 241(a)(4) and brings it to the

ground.”).

The BIA, on the advice of the Attorney General, made an

exception for vacated drug offenses21 in 1959, see In re A F, 8
36

I. & N. Dec. 429 (B.I.A. 1959), and was shortly thereafter urged

to extend that exception to other types of crimes. It declined to

do so on several grounds, notably because “[t]he contrary rule

has been in effect since at least 1943 [and t]here has been no

Congressional criticism of this rule.” In re G–, 9 I. & N. Dec.

159, 163 (B.I.A. 1960). The BIA reiterated the rule – that with

the exception of drug convictions, expunged convictions are not

“convictions” – right up to the passage of the 1996 IIRIRA

amendments. In 1996, the Board held:

We agree with the respondent that if his

conviction has been expunged . . . he is no longer

deportable. . . . For many years this Board has

recognized that a criminal conviction that has

been expunged . . . may not support an order of

deportation. . . . However, an exception to this

rule exists for expunged drug convictions. . . .

Congress did not intend for aliens convicted of

drug offenses to escape deportation on the basis

of a state procedure authorizing a technical

erasure of the conviction. [Drug crimes are] an

exception to the line of cases by this Board ruling

that a conviction which has been expunged . . .

could not be made the basis for deportation

proceedings. . . . However, the Attorney General

specifically limited this exception to drug

offenses. . . . [That exception] should not be

extended beyond drug cases.

In re Fructoso Luviano-Rodriguez, 21 I. & N. Dec. 235, 237-

238 (B.I.A. 1996).
22We do not, accordingly, read the statute as requiring

unambiguously that all convictions, even those vacated because

of substantive defects, are included in the definition. In this we

join the published opinions of at least the First, Second, and

Seventh Circuits, and depart from the Fifth Circuit. See

Herrera-Inirio v. I.N.S., 208 F.3d 299, 305 (1st Cir. 2000);

United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999);

Sandoval v. I.N.S., 240 F.3d 577, 583-84 (7th Cir. 2001);

37

After the introduction of the new statutory definition of

“conviction” in the 1996 amendments, the BIA shifted course in

Roldan, analogizing, as described above, rehabilitative vacaturs

to withheld judgments. Certainly the statutory language as

enacted closes any definitional loophole through which withheld

judgments might escape the “conviction” label. But the BIA’s

analogy to the “withheld judgment” prong of the statutory

definition pulls with it only rehabilitative vacaturs. The

“hallowed principle of precedent . . . going back over fifty

years,” James A. R. Nafziger & Michael Yimesgen, The Effect

of Expungement on Removability of Non-Citizens, 36 U. Mich.

J.L. Reform 915, 930 (2003) – that is, the government’s long

history of treating vacated convictions as nullities for

immigration purposes – was preserved for those vacaturs that

were not the functional equivalent of rehabilitative withheld

judgments – those vacaturs, in other words, that were based on

underlying defects in the conviction itself.

The BIA has not explained precisely why it thinks

substantive vacaturs do not fit the §1101(a)(48)(A) definition.

The foregoing account, however, is sufficient to support our

determination that the distinction is reasonable.22 Given its
Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 817-22 (5th Cir.

2002). In Renteria-Gonzalez, the Fifth Circuit, in holding that

a guilty plea followed by a Judicial Recommendation Against

Deportation (“JRAD”) remains a conviction for immigration

purposes, observed that “five circuits, including this court, have

concluded that a vacated or otherwise expunged state conviction

remains valid under § 1101(a)(48)(A),” 322 F.3d at 814, which

is true enough if we interpret “a” to mean “some” rather than

“all” (that is, “a vacated conviction may remain valid” as

opposed to “a vacated conviction must remain valid”). The use

of the ambiguous phrasing is misleading in this context, because

the other circuits listed, and now this Court, accept the

distinction made by the BIA between convictions which do

remain valid and convictions which do not. Indeed, in RenteriaGonzalez, Judge Benavides concurred specially to emphasize

that “the majority opinion paints with too broad a brush . . .

[because] none of the convictions in the five cases cited by the

majority was vacated based on the merits of the underlying

criminal proceeding, i.e., a violation of a statutory or

constitutional right with respect to the criminal conviction.” 322

F. 3d at 820. Because Renteria-Gonzalez’s conviction was

likewise not vacated because of a substantive defect, Judge

Benavides continues, “any indication in the majority opinion

that a conviction vacated based on the merits constitutes a

conviction under § 1101(a)(48)(A) is entirely dicta. . . .” Id. at

823 n.24.

The breadth of Renteria-Gonzalez’s holding remains

unclear. Soon after the decision was issued, an immigration

judge cited Renteria-Gonzalez in holding that a conviction that

had been vacated due to “procedural and substantive flaws in the

38
underlying proceeding” remained valid under § 1101(a)(48)(A),

and the Fifth Circuit, per Judge Benavides, “reluctantly”

dismissed the petition for review, holding that, although the

circuit was now “out of step with the rest of the nation,” it was

bound by Renteria-Gonzalez. Discipio v. Ashcroft, 369 F.3d

472, 474-75 (2004). However, the Justice Department

subsequently petitioned the court to vacate Discipio and remand

the case to the BIA for dismissal. The Justice Department

argued that because § 1101(a)(48)(A) “is silent on the effect of

a vacated conviction on an alien’s immigration status, [the Fifth

Circuit] should defer to the Board’s” interpretation as set forth

in Pickering, that substantive vacaturs are not “convictions.”

Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005). The panel

agreed to remand the case, and rehearing en banc was denied as

moot, Id. at 450, leaving the precise holding of RenteriaGonzalez up in the air. At the very least, it is clear that to read

Renteria-Gonzalez to cover susbstantive vacaturs is to stretch it

far beyond its facts.

Accepting the distinction between substantive and

rehabilitative vacaturs not only gives proper deference to the

agency’s interpretation, but also serves to avoid the

constitutional problems that might arise under a reading which

brings constitutionally protected conduct or constitutionally

infirm proceedings into the category of “conviction” – cases, for

example, involving an alien who was convicted of conduct

subsequently deemed constitutionally protected, or whose

conviction was reversed on direct appeal because of insufficient

evidence, or whose conviction was vacated on collateral attack

because of a plain constitutional defect. The agency does not

read the statute as encompassing such situations, however, so

39
these difficult cases have not come before us.

40

longstanding, consistent practice, the agency may reasonably

read the statutory language analyzed above to authorize its

drawing this distinction among vacated convictions. We

therefore begin our analysis with the proposition that an alien

whose conviction is vacated on collateral attack because the

alien’s trial counsel was ineffective under the Sixth Amendment,

no longer stands “convicted” for immigration purposes. The

question is whether Pinho’s is such a case, and, more

importantly, how that determination is to be made.

C.

We are thus faced with the question of just what the BIA

means by “based on” and “for reasons.” It is easy enough to

determine what a vacatur order is “based on” when the court

issuing the order holds a hearing and then issues a written

decision, complete with findings of fact and conclusions of law.

But not all orders come with such clear explanations. Such was

the order in the case at bar. Pinho filed a motion for postconviction relief, and raised ineffective assistance as his only

ground. The prosecution did not answer that motion. At the

hearing on the motion, the parties agreed that Pinho’s conviction

would be vacated, he would be placed in the PTI program, and

the charges would be dismissed. The one-sentence order of

dismissal simply cites the PTI placement.

Facially, then, one might say that the conviction was

vacated “based on” the parties’ agreement to Pinho’s PTI

placement. After all, the words of the judge at the hearing were:
41

“[S]ince Mr. Pinho has been accepted into PTI, I think the

previous judgment of conviction can be vacated.” Acceptance

into PTI is, likewise, on its face a “reason[] unrelated to the

merits of the underlying criminal proceedings.”

But our inquiry cannot end there. The fact that the

parties agreed to settle rather than proceed to trial on the

ineffective assistance claim should not be dispositive. Indeed,

it may be that the likelihood that the prosecution will agree to a

settlement such as PTI placement will increase proportionally

with the strength of the alien’s constitutional claim. If the BIA

in Pickering had meant to require an adjudication of the merits

of aliens’ claims of substantive defects in the original conviction

in order to make out an adequate “basis,” it could have said so.

But it did not. It has instead drawn its line between vacaturs

“based on” underlying defects and vacaturs granted “for

reasons” not related to underlying defects, and it is readily

apparent that the set of vacaturs “based on” underlying defects

is not necessarily coextensive with the set of vacaturs based on

adjudications of underlying defects. We must therefore inquire

as to the reasons underlying the vacatur order, and it would

obviously be begging the question simply to invoke the PTI

acceptance yet again. The prosecutor’s offer of PTI placement

did not spring into being ex nihilo; rather, it was by way of

settlement of Pinho’s collateral attack on the constitutional

validity of his conviction. The relevant “reason,” then, for our

Pickering analysis, is plainly the reason for the settlement

agreement.

That agreement, as the judge states at the March 10

colloquy, was the “upshot” of negotiations between the
42

attorneys, who “have been dealing with this matter for several

months.” The “matter” the attorneys had been “dealing with”

was Pinho’s motion for post-conviction relief based on

ineffective assistance of counsel. Of signal importance to this

case is the fact that that motion was the only pleading before the

judge. The state did not answer the motion. At no time did

Pinho, or the state, or the judge, raise any issue other than

ineffective assistance. The government asks us to hold that the

vacatur order was not “based on” the ineffective assistance

motion, even though there was no other basis for vacatur offered

at any point in the proceedings. The government asks us, in

other words, to hold that the agency may permissibly find a

motive in a state-court ruling that is nowhere stated in the

record. This we decline to do.

At oral argument the government contended that the

motives of state prosecutors and judges might change over time

and might not be reflected in the record. Perhaps a new

prosecutor, reviewing old cases, might decide that some of his

predecessor’s policies had been unduly harsh. Perhaps such a

prosecutor, when presented with a post-conviction relief claim

brought by a defendant who had been denied entry into a pretrial diversion program years earlier because of a nowdiscredited policy, might decide to “do the right thing,” and help

that defendant avoid the immigration consequences of his guilty

plea. Perhaps a state judge, looking at the case, would see a

hard-working family man threatened with deportation based on

a relatively minor crime committed a decade earlier, and decide

to help that hard-working family man get around the federal

immigration laws. Perhaps, perhaps. We present this

hypothetical to highlight the fact that it is precisely that: a
43

hypothetical proposed by the government about possible

motives of state actors nowhere found in the record. Were we

to allow the Department of Homeland Security to base its legal

determinations of immigrants’ statutory eligibility for

adjustment of status upon hypothetical scenarios such as this, we

would be opening the door to – indeed in many cases due

process would require – a flood of subpoenas to judges and

prosecutors of sovereign states ordering them to appear in

federal immigration proceedings to answer questions about

motives, feelings, and sympathies that appear nowhere in any

written record, but that may have prompted their official actions.

Behind the expansive interpretation of “reason” and “basis”

urged by the government, we see the specter of such unseemly

inquisitions.

How else, indeed, could Pinho have challenged the

agency’s claim that the vacatur order was not “really” based on

his ineffective assistance claim? Would he not have to call the

prosecutor and ask him why, exactly, he agreed to PTI

placement? Would he not have to call the judge and ask him

why, exactly, he agreed to vacate the conviction and dismiss the

charges? And if the answers were unfavorable to the

government’s theory, would it not seek, in cross-examination,

to establish that the state actors harbored secret motives, such as

undue sympathy for an immigrant or animosity toward federal

immigration law?

We cannot endorse a test which requires speculation

about, or scrutiny of, the reasons for judges’ actions other than
23Cf. Sandoval, 240 F.3d at 583 (“The INS also alleges

that the modification [of Sandoval’s conviction] was entered

solely for immigration purposes, and is thus ineffective. This

allegation is unfounded. The judge’s modification was in

response to Sandoval’s properly filed motion stating a

cognizable claim of ineffective assistance of counsel. That

Sandoval may have filed his motion in response to the threat of

deportation is irrelevant. Further, even if the state court judge’s

decision to modify Sandoval’s sentence was motivated by the

consequences of the federal immigration law, that fact would

not render the modification ineffective for immigration

purposes.”).

24For example, both judges and prosecutors enjoy

absolute immunity from damage suits and criminal prosecution

arising from their official acts. See Stump v. Sparkman, 435

U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976). It

is unclear how the principle of immunity might extend to

subpoenaed testimony about unstated motives. Our decision

today avoids this issue.

44

those reasons that appear on the record.23 Whether or not

constitutional avoidance requires this result,24 avoidance of

absurdities surely does. See Sheridan v. United States, 487 U.S.

392, 492 (1988) (“[C]ourts should strive to avoid attributing

absurd designs to Congress. . . .”). But most important are basic

considerations of comity. When, as in this case, there arises a

dispute over the “reason” or “basis” for a decision, if the parties

are permitted to speculate about unstated motives that perhaps

underlie vacatur orders, there will be little alternative to calling

judges and prosecutors as witnesses in immigration proceedings.
25We thus decline the government’s similar invitation

here to decide the ineffective assistance claim ourselves. See

Brief for Appellee, at 11-12.

45

We do not deem such a prospect to be in keeping with

longstanding principles of federal respect for state decisions as

to the meaning of state law. “[T]he respect that federal courts

owe the States and the States’ procedural rules,” Coleman v.

Thompson, 501 U.S. 722, 726 (1991), is owed no less by federal

agencies than by federal courts. The Supreme Court has

repeatedly emphasized that state courts are the ultimate

authorities on the meaning of state law. Other than “a few

exceptional cases in which the Constitution imposes a duty or

confers a power on a particular branch of a State’s government,”

Bush v. Gore, 531 U.S. 98, 112 (2000), the authority of state

courts to determine state-law questions is clear: “[C]omity and

respect for federalism compel us to defer to the decisions of

state courts on issues of state law. That practice reflects our

understanding that the decisions of state courts are definitive

pronouncements of the will of the States as sovereigns.” Id.

Recognizing the force of this longstanding principle, the BIA

correctly declined the government’s invitation in RodriguezRuiz to “look behind” a state-court ruling and decide whether

that ruling was correct under state law.25 The same

considerations govern the search for unstated motives: both

contravene long-settled principles of federalism. A state law

may be declared unconstitutional; it may not, however, simply

be rewritten. So too, we hold, with vacatur orders.

The government could have avoided this problem

altogether. As the Supreme Court has emphasized, the
46

definition of “conviction” for purposes of applying federal laws

is a question of federal law. Dickerson v. New Banner Institute,

Inc., 460 U.S. 103, 111-12 (1983) (“[W]hether one has been

‘convicted’ within the language of [federal] statutes is

necessarily . . . a question of federal, not state, law, despite the

fact that the predicate offense and its punishment are defined by

the law of the State.”). Further, the executive branch is entitled

to great deference in formulating immigration policy, an

“especially sensitive political function[] that implicate[s]

questions of foreign relations,” I.N.S. v. Abudu, 485 U.S. 94, 110

(1988). Given the expansive statutory definition of

“conviction,” and the deference the agency’s interpretation is

owed, the agency could have chosen to contend that as a matter

of federal law all vacated state convictions remain “convictions”

under § 1101(a)(48)(A), whether rehabilitative or substantive.

If the agency wishes to adopt this interpretation of the statutory

definition it may do so, through rulemaking or adjudication, and

it may defend that interpretation before the courts. But the

agency has not done so, and it is another matter entirely for the

agency to distinguish among vacated convictions based on the

reasons for the vacatur, and then to arrogate to itself the power

to find hidden reasons lurking beneath the surface of the rulings

of state courts. Under the Supremacy Clause, the Department of

Homeland Security may, pursuant to statutory authority,

properly interpret § 1101 (a)(48)(A) to encompass convictions

vacated by order of state courts. But it is far from clear that it

may rewrite state-court rulings as to the legal basis for those

orders. Our Federalism has not yet come to that.

D.
26Lim v. Ashcroft, No. 01-CV-3271, 2002 WL 1967945

(D.N.J. 2002) (unpublished). We remind the District Court that

unpublished district court opinions are not a source of law.

47

In this case, the District Court openly expressed its

suspicion that Pinho’s ineffective assistance motion was, sub

silentio, something else entirely. “It is troubling that [Pinho]

admitted guilt, served his sentence and then waited

approximately three years to seek post-conviction relief based

on ineffective assistance. . . .” Pinho v. Ashcroft, No. 03cv6232,

at 10 (D.N.J. Aug. 9, 2004). The District Court then turned for

guidance to an unpublished district court opinion, Lim v.

Ashcroft,

26 involving similar issues, noting that “Chief Judge

Bissell shared the same concerns of this Court,” namely “that

there was no reason for the state to entertain petitioner’s postconviction motion for any purpose other than to benefit

petitioner before the INS or this Court. . . .” Id. at 11. The

District Court then stated explicitly that “Chief Judge Bissell’s

opinion in Lim . . . is a factor in denying Plaintiff’s motion.” Id.

The District Court’s quasi-adoption of Lim is noteworthy for

more than its procedural irregularity. In Lim the district court

accused the state judge and prosecutor of being practitioners, or

willing victims, of outright duplicity. A brief discussion of Lim

is therefore warranted here, because it is an object lesson in the

pitfalls of the government’s proposed approach.

Lim pled guilty in New Jersey in 1996 to kidnapping; in

1998, the INS began removal proceedings. In 2001, Lim sought

postconviction relief in state court, contending that he had

received ineffective assistance of counsel, and petitioned the

district court to stay deportation pending exhaustion of the state
27The court summarized the proceedings as follows:

[T]he transcript shows that at the outset the court

was presented with an arrangement in the nature

of a plea agreement, that had been reached prior

to the hearing between Mr. Lim and state

authorities. Pursuant to the arrangement, the

following actions were taken at the hearing:

(1) the state court permitted Mr. Lim to withdraw

his earlier plea to the kidnapping charge and enter

a plea of guilty to a charge in the original

indictment of aggravated assault; (2) the court

vacated the kidnapping conviction and stated that

the date of the new plea should be treated for

immigration purposes as having been entered on

March 18, 1996 (a fictitious date as far as the

record reveals); (3) the state dismissed voluntarily

the remaining charges; (4) the court sentenced

Mr. Lim to time served. All agreed that the

foregoing arrangement’s purpose was to facilitate

Mr. Lim in avoiding deportation; by attempting to

amend the date of conviction, Mr. Lim and his

counsel sought to avoid the AEDPA amendment

and preserve his eligibility for Section 212(c)

consideration.

Lim, 2002 WL 1967945, at *3.

48

claim. After the state court granted Lim post-conviction relief,

the district court took it upon itself to review the state court’s

state-law ruling,27 and declared the entire proceeding to be a
49

sham: “[T]his Court determines that there was a significantly

deficient legal foundation for the state court’s vacation of Mr.

Lim’s kidnapping conviction.” Lim, No. 01-CV-3271, at *5.

Regardless of what the state court said it found, according to the

district court, it did not “really” find ineffective assistance. The

District Court concluded that a hidden motive was at work:

[I]n accommodating the proposed plea

arrangement, the state court acted not on the basis

of a meritorious claim of ineffective assistance of

counsel, but for some other reason. . . . The [state

court’s own] remarks unmistakably show that the

state court vacated the kidnapping conviction out

of concern for Mr. Lim’s immigration plight, not

because there was any merit in his collateral

attack on the kidnapping charge.

Id. at *9. The prosecutor and the judge were, according to the

district court, played for fools; they were made the dupes of a

conniving lawyer who “played to the[ir] interests” in

“contriv[ing] a fictional disposition . . . as a means to subvert

federal statutes.” Id. at *10. The post-conviction relief petition

was thus a fraud: “[I]t is apparent that the petition for postconviction relief that was pursued in this case was not used to

test the merit of Mr. Lim’s claim of ineffective assistance of

counsel, but rather as a vehicle to engineer a result that would

benefit petitioner in proceedings before the INS or this

Court. . . .” Id. at *9.

The concern, then, that the District Court in this case

“shared” with the court in Lim is that the integrity of legal
28Although Judge McKee agrees with the rationale and

result of our decision, he does not agree that we need to

establish a formal test to properly resolve this appeal. He

therefore does not endorse the majority’s categorical test.

50

proceedings in state courts cannot be trusted. This Court does

not approve of accusations of dishonesty or complicity in

“subversion” leveled at state courts and prosecutors. We will

not accept an interpretation of the Immigration and Nationality

Act that permits, let alone requires, speculation by federal

agencies about the secret motives of state judges and

prosecutors.

The temptation to second-guess the motives of state

officials is a predictable byproduct of inadequate judicial

guidance as to the permissible bounds of agency inquiry into the

basis for state-court actions. The powers of immigration

officials are extensive, and if immigrants are to have any

certainty as to the effect criminal proceedings in state courts

may have on their immigration status, those bounds must be

drawn plainly and brightly. Where definitions are broad, so

must they be clear. It cannot be the case that whether a

conviction is a conviction depends on whether an immigration

official suspects a state judge of secretly harboring subversive

motives. If the relationship between state criminal proceedings

and federal immigration proceedings is to be governed by the

rule of law, then that law must be a law of rules.

We therefore announce the following categorical test for

classification of vacated convictions under the INA.28 To

determine the basis for a vacatur order, the agency must look
29Our test is informed by our decisions in United States

v. Taylor, 98 F.3d 768 (3d Cir. 1996), and United States v.

Joshua, 976 F.2d 844 (3d Cir. 1992). In those cases we had to

determine how to classify a prior crime for purposes of the

Federal Sentencing Guidelines. We held that “a sentencing

court should look solely to the conduct alleged in the count of

the indictment charging the offense of conviction. . . .” Taylor,

98 F.3d at 771 (quoting Joshua, 976 F.2d at 856). Thus, to

determine whether a prior crime was a “crime of violence,” the

sentencing court could look only at the conduct alleged in the

indictment for the count which was proved or admitted. The

court could not look outside the indictment to determine whether

the defendant actually committed other acts which did not

appear in the indictment on that count.

Our test also accords deference to the BIA’s formulation

in Pickering, which provides that “in making this determination

[of the basis for a vacatur] we look to the law under which the

. . . court issued its order and the terms of the order itself, as well

as the reasons presented by the respondent in requesting that the

court vacate the conviction.” Pickering, 23 I. & N. Dec. at 625.

51

first to the order itself. If the order explains the court’s reasons

for vacating the conviction, the agency’s inquiry must end there.

If the order does not give a clear statement of reasons, the

agency may look to the record before the court when the order

was issued. No other evidence of reasons may be considered.29
52

IV.

Applying this rule to the case at hand is straightforward.

In his pleading, Pinho raised only one claim: ineffective

assistance of counsel. The state did not file an answer. The

judge’s vacatur order refers to the PTI placement agreement,

which was reached in settlement of Pinho’s ineffective

assistance claim. The only basis for the vacatur appearing in the

order or the pleadings is Pinho’s ineffective assistance claim.

Under the distinction articulated in Pickering, therefore, Pinho’s

conviction was vacated “based on a defect in the underlying

criminal proceedings,” and Pinho accordingly “no longer has a

‘conviction’ within the meaning of section 101(a)(48)(A).”

Pickering, 23 I. & N. Dec. at 624.

The AAO therefore erred as a matter of law in

determining Pinho to be ineligible for adjustment of status under

§§ 1101 and 1182, and the District Court erred in affirming that

determination. We wish to emphasize that while we may, and

must, ensure that purely legal determinations are made by the

agency in accordance with law, the decision whether in fact to

grant adjustment of status is a matter entrusted to the discretion

of the agency, and we lack the power to review denials of

adjustment applications as such. When we have instructed the

agency on the correct legal standard, we have said all that we

may say. We will accordingly reverse the judgment below and

remand to the District Court for the granting of relief consistent

with this opinion.