In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2994

RAYFORD GILL,

Petitioner,

v.

JOHN ASHCROFT, Attorney General

of the United States,

Respondent.

____________

Petition for Review of a Decision of the

Board of Immigration Appeals

____________

ARGUED MAY 23, 2003—DECIDED JULY 8, 2003

____________

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. Aliens convicted of any

drug offense other than possessing less than 30 grams of

marijuana lose their right to remain in the United States.

8 U.S.C. §1227(a)(2)(B)(i). They also lose any opportunity

to apply for discretionary relief, such as cancellation of

removal, and to obtain judicial review of the administrative decisions about those discretionary avenues. 8 U.S.C.

§1252(a)(2)(C). But all persons ordered removed retain

the right to judicial review of the antecedent, non-discretionary questions, such as whether they are aliens and

whether they have committed disqualifying crimes. See
2 No. 02-2994

Yang v. INS, 109 F.3d 1185 (7th Cir. 1997). Rayford Gill, a

citizen of Belize admitted in 1994 as a permanent resident,

presents such an antecedent question. Although administrative officials concluded that he had been convicted of

possessing cocaine, Gill denies that the state proceedings

ended in a “conviction.” If the agency is right, then we

lack jurisdiction of Gill’s petition for review; if Gill is

right, then we have jurisdiction and the order of removal

must be set aside.

Gill pleaded guilty in an Illinois court to possession of

cocaine. He was sentenced to “410 probation,” a disposition

that takes its name from 720 ILCS 570/410. Section 410(f)

provides that, if a first offender completes this probation

without incident, “the court shall discharge the person

and dismiss the proceedings against him.” The statute

continues:

A disposition of probation is considered to be a

conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a

conviction for purposes of this Act or for purposes

of disqualifications or disabilities imposed by law

upon conviction of a crime.

720 ILCS 570/410(g). If Illinois law were dispositive, then,

Gill would not have on his record a “conviction” for possessing cocaine. But federal immigration law has its own

definition of that word. A provision added by the Illegal

Immigration Reform and Immigrant Responsibility Act

of 1996, Division C of Pub. L. 104-208, 110 Stat. 3009 (Sept.

30, 1996), reads as follows:

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
No. 02-2994 3

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). Gill’s plea of guilty satisfies

part (i) of this definition, and the term of probation satisfies

part (ii), so he has been “convicted” even though “adjudication of guilt has been withheld”.

Gill asks us to look past the text of §1101(a)(48)(A) to the

history of this issue. Before 1996 the absence of a statutory definition required the agency to come up with its

own. There were two possible approaches: either accept

for federal purposes whatever characterization the states

attached to their dispositions, or create a uniform rule

of federal common law. Each of these approaches has been

used for other purposes. For example, federal law imposes

stiff penalties on those who possess firearms despite

prior gun convictions. 18 U.S.C. §§ 922(g), 924(e). Under

the felon-in-possession laws, as under the immigration

laws, there have been two principal problems: first, how

to classify diversionary dispositions such as “410 probation”

that impose some restraint on liberty but withhold

formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for

restoring the person’s civil rights.

Until 1986 both of these issues were handled for purposes of §922(g) and §924(e) under uniform federal law. See

Dickerson v. New Banner Institute, Inc., 460 U.S. 103

(1983). In 1986 Congress enacted 18 U.S.C. §921(a)(20),

which reads:

What constitutes a conviction of such a crime shall

be determined in accordance with the law of the

jurisdiction in which the proceedings were held.

Any conviction which has been expunged, or set

aside or for which a person has been pardoned or
4 No. 02-2994

has had civil rights restored shall not be considered

a conviction for purposes of this chapter, unless

such pardon, expungement, or restoration of civil

rights expressly provides that the person may not

ship, transport, possess, or receive firearms.

This resolves the first issue (diversionary and deferred

dispositions) under state law, while the second (the effect

of expungement) now depends on a mixture of state and

federal law: state law controls, but only if it meets the

federal standard of explicitness with respect to firearms

disabilities. See Caron v. United States, 524 U.S. 308

(1998).

Immigration law went at this differently. The Board of

Immigration Appeals decided to craft a federal commonlaw definition of “conviction” for state judgments, with

one exception: first offenders charged with simple possession. With respect to these, the Board asked whether

the state’s disposition would have been a “conviction” if

the prosecution had been in a federal court that elected

to use 18 U.S.C. §3607(a). This provides that, with the

agreement of the accused, the federal judge may

place him on probation for a term of not more

than one year without entering a judgment of

conviction. At any time before the expiration of

the term of probation, if the person has not violated

a condition of his probation, the court may, without

entering a judgment of conviction, dismiss the

proceedings against the person and discharge him

from probation. At the expiration of the term of

probation, if the person has not violated a condition of his probation, the court shall, without

entering a judgment of conviction, dismiss the

proceedings against the person and discharge him

from probation.
No. 02-2994 5

A disposition under this provision “shall not be considered

a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any

other purpose.” 18 U.S.C. §3607(b). The Board thought that

what was mete for persons accused in federal court should

go for those accused in state court as well. See, e.g., Matter

of A-F-, 8 I&N Dec. 429, 445-46 (BIA, AG, 1959); Matter of

Ozkok, 19 I&N Dec. 546, 551-52 (BIA 1988); Matter of

Manrique, 21 I&N Dec. 58, 64 (BIA 1995). The upshot was

that all first offenders, state and federal, were analyzed

under the approach of §3607(a), while all repeat offenders

were treated as “convicted” whether or not they entered a

diversionary program, and whether or not their civil rights

had been restored at the conclusion of their sentences.

After the adoption of a federal definition in 1996, however, the Board of Immigration Appeals concluded that

this new definition controls uniformly. In Matter of Roldan,

22 I&N Dec. 512 (BIA 1999), the Board held that the

criteria of §1101(a)(48)(A) apply to all offenders, no matter

how they would have been treated if they had been charged

in federal court and the judge had elected to resolve the

prosecution under §3607(a). The ninth circuit set aside

the decision in Roldan and forbade the Board to alter its

pre-1996 policy for first offenders. See Lujan-Armendariz v.

INS, 222 F.3d 728 (9th Cir. 2000). The Board has declined

to acquiesce in Lujan-Armendariz and will not apply it

outside the ninth circuit. See Matter of Salazar-Regino, 23

I&N Dec. 223 (BIA 2002). Every court that has considered

the subject believes that §1101(a)(48)(A) governs the

handling of repeat offenders and that expungements (or

restorations of civil rights) under state law do not negate a

“conviction” for purposes of immigration law. See HerreraInirio v. INS, 208 F.3d 299 (1st Cir. 2000); United States v.

Campbell, 167 F.3d 94 (2d Cir. 1999); Renteria-Gonzalez v.

INS, 322 F.3d 804, 812-14 (5th Cir. 2002); Murillo-Espinoza

v. INS, 261 F.3d 771 (9th Cir. 2001). But Lujan-Armendariz
6 No. 02-2994

holds that first offenders are entitled to the benefit of the

pre-1996 policy despite the enactment of §1101(a)(48)(A).

If Lujan-Armendariz is right, then §1101(a)(48)(A) is

ineffectual—for it codifies the Board’s pre-1996 policy with

respect to other diversionary dispositions and expungements. Depriving a statute of any consequence is serious business, which Lujan-Armendariz did not adequately justify. Its theme, which Gill repeats, is that

§1101(a)(48)(A) does not in terms repeal §3607, and, as

repeals by implication require a square conflict, see J.E.M.

Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534

U.S. 124, 141-44 (2001) (collecting authority), §3607(b)

remains in force. The agency complains that the ninth

circuit has invaded its interpretive authority. It is unnecessary for us to determine how far Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), applies to the Board’s adjudicatory (as opposed to

rulemaking) decisions after United States v. Mead Corp.,

533 U.S. 218 (2001); the agency is still entitled to a significant measure of discretion. See INS v. Ventura, 537 U.S.

12 (2002); INS v. Aguirre-Aguirre, 526 U.S. 415 (1999).

Precisely how much interpretive leeway it possesses is

irrelevant today, however; the Board’s current approach is

a straightforward application of §1101(a)(48)(A), which

abolishes, for purposes of immigration law, any distinction between the treatment of deferred dispositions in

first and successive drug-possession offenses.

It makes no difference, for state offenders such as

Gill, whether §3607 has been repealed by implication,

because that law applies only to persons prosecuted in

federal courts. Until 1996 the Board adapted its approach to state-law deferred dispositions, not as a matter

of statutory command, but as a matter of federal common

law. It might have changed that approach by the same

means it had been adopted: administrative adjudication.

Congress took the issue out of its hands in 1996. A statute
No. 02-2994 7

such as §1101(a)(48)(A) displaces common law. See Bank

of Nova Scotia v. United States, 487 U.S. 250, 255 (1988);

United States v. Payner, 447 U.S. 727 (1980). In the absence

of legislation the agency had to find its own way; now the

agency must take the statute’s path. Lujan-Armendariz

disregarded the distinction between persons charged in

federal court, and thus covered by §3607, and those charged

in state court, and thus covered (until 1996) only by the

Board’s nonstatutory extension of its approach. After the

enactment of §1101(a)(48)(A), however, this difference may

be dispositive.

Whether §3607 has been limited by implication matters

only to a person sentenced under §3607, which Gill was

not. We say “limited” rather than “repealed” because

§1101(a)(48)(A) affects only immigration matters; even if

a disposition under §3607 counts as a conviction in immigration law, it would not be a conviction for other purposes, such as firearms disabilities. Thus §1101(a)(48)(A)

and §3607(b) may coexist, though the former reduces

the domain of the latter. Gill’s situation does not occasion a definitive resolution of the relation between

§1101(a)(48)(A) and §3607(b), however. It is enough to say

that §3607 has no residual effect on the appropriate

characterization of state-law deferred dispositions. These

are handled comprehensively, and exclusively, by

§1101(a)(48)(A).

Gill does not deny that “410 probation” is a “conviction”

under the text of §1101(a)(48)(A). The holding of LujanArmendariz, which elevates an abandoned administrative

practice over a statutory text, is untenable, and we decline

to follow it. Because this decision creates a conflict among

the circuits, it was circulated before release to all active

judges. See Circuit Rule 40(e). No judge favored a hearing

en banc.

The petition for review is dismissed for want of jurisdiction.
8 No. 02-2994

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-8-03