## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-60364

_______________



### R ICARDO 

### R ENTERIA 

### -G ONZALEZ



### ,

Petitioner,

VERSUS



### I MMIGRATION AND 

### N ATURALIZATION 

### S ERVICE



### ,

Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals

_________________________

November 11, 2002

Before S MITH

and B ENAVIDES , Circuit

Judges, and F ITZWATER

, * District Judge.

J ERRY E. S MITH , Circuit Judge:

The Im migration and Naturalization Servi ce

(“INS”) and Ricardo Renteria-Gonzalez have wrangled for over a decade. Now that they

finally have reached this court, their case

provides yet another oppo rt unity to interpret

the Illegal Immigration Reform and Immigrant

Responsibili

t y Act of 1996 (“IIRIRA”), Pub.

L. No. 104-208, 110 Stat. 3009-546 (1996). 1

* District Judge of th e Northern District of

Texas, sitting by designation. 1 We cite this statute using the abbreviation

“IIRIRA” followed by the section number from the

(continued...)2

In particular, the case presents a complicated

i n terpretive question invo lving the definition,

criminal alien removal, and jurisdictional

sections of IIRIRA.

Although Renteria-Gonzalez has an “aggravated felony” conviction under the IIRIRA

definition, his conviction did not qualify as an

“aggravated felony” under pre-IIRIRA immigration law. IIRIRA therefore does not deprive this court of jurisdiction over the petition

for review. Exercising that jurisdiction, we

deny the petition for review under the substantial evidence standard.

I.

Renteria-Gonzalez, a citizen of Mexico, obtained temporary resident status in the United

States in 1987. In 1989, he pleaded guilty of

transporting illegal aliens within the United

States in violation of

8 U.S.C. § 1324(a)(1)

and 18 U.S.C. § 2. The di stri ct court sentenced him to six months’ confinement and

three years’ supervised release. The court also

issued a “judicial recommendation against deportation” (“JRAD”) under 8 U.S.C. § 1251-

(b) (1988) (repealed by the Immigration Act of

1990 , Pub. L. No. 101-649, § 505, 104 Stat.

4978, 5050 (1990)). 2

Notwithstanding the JRAD, the INS began

deportati on proceedings in August 1990 by issuing an order to show cause based on Renteria-Gon zal

ez’s unlawful entry into the United States on the occ asion when he transported

t he illegal aliens. The INS presumably used

this allegation to avoid the JRAD on the transporting conviction. Yet, the INS had not term inated Renteria-Gonzalez’s temporary res i

dent status either when he entered the United

States with the illegal aliens or w hen the

agency issued the order to show cause.

Thus, t he INS voluntarily dismissed the

order to show cause in August 1991. But in

September 1991, the agency sent RenteriaGonzalez a notice of intent t o t erminate his

temporary resident status, then terminated his

status in November 1991.

Renteria-Gonzalez sought two avenues of

relief from the attempts to deport him. First,

he appealed the termination of his temporary

resident status to the INS’s L egalization

A ppeals Unit (“LAU”), which affirmed the

termination of his temporary resident status in

July 1992. Second, he petitioned the district

court to vacate his conviction.

In F ebruary 1992, a magistrate judge

recommended that the district court vacate

Renteria-Gonzalez’s conviction under the All

Writs Act, 28 U.S.C. § 1651. The district

court adopted the recommendation and vacated his conviction in October 1992 (the “Order

to Vac a te”). The government immediately

moved the court to reconsider the Order to

Vacate, but the court denied the motion. The

government did no t appeal the Order to

Vacate.

The INS began deportati on procee d ings

anew in January 1994 by issuing another order

to show cause, this time basing the or der not

only on Renteria-Gonzalez’s alleged unlawful

entry and presen ce, but also on his alien (...continued)

statute.

2 Although styled a “recommendation,” a JRAD

was “binding on the Attorney General.” U nited

States v. Castro

, 26 F.3d 557, 560 (5th Cir. 1994)

(citing Janvier v. United States

, 793 F.2d 449, 452

(2d Cir. 1986)).3

smuggling activities. 3 The immigration judge

(“IJ”) held exte nsive hearings on the order at

which Ren teri a-Gonzal

ez, INS Border Patrol

Agent Lane Horger, and A nt onio BautistaGar c ia, Renteria-Gonzalez’s accomplice, testified.

The IJ’s d e cision ultimately turned on one

factual dispute: Horger testified that the illegal

aliens had told him that Renteria-Gonzalez and

Bautista-Garcia had picked them up in Mexico

for $150 to $250 per alien, whereas RenteriaGonzalez and Bautista- Garcia testified that

they picked up the ill egal aliens at a rest stop

in the United States without knowledge o f

their alien status. Based o n internal inco nsistencies in the testimony of RenteriaGonzalez and Bau t ista-Garcia and other

circumstantial evidence, the IJ credited

Horger’s testimony and held that RenteriaGonzalez was deportable.

Renteria-Gonzalez t imely appealed to the

Board o f Immigration Appeals (“BIA”),

arguing that he had not received a fair hearing

because the INS had made no effort to obtain

t he presence of the illegal aliens he

transported, and the IJ had not let him test

Horger’s knowledge of Spanish on crossexamination. Renteria-Gonzalez also argued

that the IJ and BIA lacked jurisdiction because

the INS had not pro perly terminated his

temporary resident status b e fore instituting

deportati on proceedings. After an inexplicable

delay of nearly seven years, the BIA in April

2001 finally dismissed R e nteria-Gonzalez’s

appeal and approved a final order of removal. Renteria-Gonzalez petitions for review of the

BIA’s decision.

II.

IIRIRA is a difficult statute. It consumes

over a quarter of a 750-page omnibus law. It

amends the Immigration and National it y Act

(“INA”) in dozens of important but technical

ways. Most importantly for this case, IIRIRA

dramatically restricts judicial review of final

orders of removal.

Because IIRIRA is complicated, and its jurisdictional sect io ns especially so, we first examine the relevant sec t ions and the INS’s

seemingly well-crafted argument against jurisdiction. We then explain why RenteriaG onzalez’s conviction of transporting illegal

aliens within the United Stat e s was not an

“aggravated felony” convictionunder preIIRIRA immigration law that, in the case of an

“aggravated felony,” would strip this court of

jurisdiction to review a petition for review.

A.

IIRI RA has a transitional rule and a

permanent rule for judicial review o f a final

order of r emoval. The transitional rule

appears only in

IIRIRA § 309(c)(4)(G), not in

the United States Code. The perm anent rul e

appears as 8 U.S.C. § 1 252(a)(2)(C). The

transitional and permanent rules are nearly

identical. The transitional rule states that

there shall be no appeal permitted in the

case of an alien who is inadmissible or

deportable by reason of having

committed a criminal offense covered in

secti on 212(a)(2) or section

241(a)(2)(A)(iii), (B), (C), or (D) of the

Immigration and Nationality Act (as in

effect as of the date of the enactment of

this Act), or any offen se covered by 3 Under pre-IIRIRA law, these two grounds for

deportation appeared at 8 U.S.C. § 1251(a)(1)(B),

(E ) (i) (1994). IIRIRA re-codified these grounds

for deportation at 8 U.S.C. § 1227(a)(1)(B), (E)(i).

See IIRIRA § 305(a)(2).4

section 241(a)(2)(A)(ii) of such Act (as

in eff e ct on such date) for which both

predicate offenses are, without regard to

their dat e of commission, otherwise

covered by section 241(a)(2)(A)(i) of

such Act (as so in effect).

IIRIRA § 309(c)(4)(G).

Aside from syntactical differences, the permanent rule is identical, except that it omits

the three parentheticals. S ee 8 U.S.C. § 1252-

(a)(2 )(C). As we explain, i nfra part II.B.2,

these parentheticals make all the difference in

this case.

The transitional rule governs Renteria-Gonzalez’s case. It applies to any alien “whose

deportati on proceedings commence before

IIRIR A’s general effective date of April 1,

1997, and conclude more than thirty days after

it s passage on September 30, 1996.” Lerma

de Garcia v. INS

, 141 F.3d 215, 216 (5th Cir.

1998); IIRIRA § 309(c)(1), (4) . RenteriaGonzalez’s proceedings began in January 1994

and concluded in April 2001.

The transitional rule (like the permanent

rule ) withdraws jurisdiction from the federal

courts to review a fi nal o rder of removal

against an alien who is removable by reason of

having commi

t ted one of several criminal offenses, one of which is an “aggravated felony.”

8 U.S.C. § 1227(a)(2)(A)(iii) (cross referenced

i n IIRIRA § 309(c)(4)(G)). The INA now

defines (but once di d not) the term

“ aggravated felony,” and in great detail. 8

U.S.C. § 1101(a)(43). Amo ng the crimes

included is transporting an i llegal alien in

violation of § 1324(a)(1)(A) or (2), the crime

of which Renteria-Gonzalez pleaded guilty. 8

U.S.C. § 1101(a)(43)(N); Ruiz-Romero v.

Reno , 205 F.3d 837 (5th Cir. 2000). Furthermore, the t ransitional rule (again,

like the permanent rule) applies to a petition

for review, even if the basis for the final order

of removal is not the jurisdiction-stripping

criminal offense. The transitional rule applies

to aliens “deportable by reason of having committed” an aggravated felon y. This language

does not r e quire that the alien in fact be

deported for having committed an aggravated

felony, but only that he could be deported

, i.e.,

is deportable , by reason of having committed

an agg ravated felony. “What the INS

o riginally charged is of no consequence; so

long as the alien in fact is remo vable for

committing an aggravated felony, this court

has no jurisdiction, irrespective of whether the

INS originally soug h t removal for that

reason.” Lopez-Elias v. Reno , 209 F.3d 788,

793 (5t h Cir. 2000), c ert. denied

, 531 U.S.

1069 (2001).

Thus, it is irrelevant that the INS did not

charge Renteria-Gonzalez with commission of

an aggravated felony, but instead with

unlawful entry and presence and his alien

smuggling activities. 4 The transitional rule

applies regardless.

Based on these sections of the post-IIRIRA

INA, the IN S makes an elegantly logical argument against jurisdiction. RenteriaGonzalez was convicted of transporting illegal

aliens under § 1324(a). A § 1324(a)

conviction is an “aggravated fel ony” under

IIRIRA. An aggravated felony is a deportable

criminal offense under § 1227(a)(2)(A)(iii),

and II RIRA § 309(c)(4)(G) withdraws

jurisdiction to review a final order of removal

4 Section 1227(a)(1)(E)(i) covers conduct similar to that encompassed by § 1324(a) but does not

requires a criminal conviction before an alien may

be deported for alien smuggling.5

against an alien deportable “by reason of

having committed” an aggravated felony.

Q.E.D., the INS argues, IIRIRA

§ 309(c )(4)(G) bars judicial review in this

case.

B.

Renteri a-Gonzalez responds to the INS’s

argument with two contentions. First, he reasons that he no lo nger has a conviction,

because the district court vacated hi s

conviction in 1992. Second, he argues that his

conviction of transporting illegal aliens, even if

it remains valid, did not qualify as an

“aggravated fel ony ” under pre-IIRIRA

immigration law and thus is not a jurisdictionstripping offense under IIRIRA §

309(c)(4)( G). Renteria-Gonzalez errs in

saying that his conviction i s vacated for

purpo ses o f the immigration laws, but he is

correct that his conviction did not qualify as an

“aggravated felony” under pre-IIRIRA immigration law.

1.

Renteria-Gonz a lez contends that he no

longer has a convicti o n, because the district

court vacated his conviction in 1992. The INS

resp onds t hat the Order to Vacate is null for

lack of subject matter jurisdiction or, in the alternative, that a properly vacated federal conv i ction remains valid for purposes of the immigration laws, even if a district court has purported to vacate the conviction to avoid the

immigration-related consequences of the conviction. We conclude that , though the INS

may not now collaterally attack the Order to

Vacate, the vacated conviction remains valid

for purposes of the immigration laws.

a.

The district court committed several errors

of law when it va cat ed Renteria-Gonzalez’s conviction. First, it lacked statutory authority.

As the magistrate judge’s re port and

recommend a tion indicates, the court vacated

Renteria-Gonzalez’s convictio n solely because

of the 1990 JRAD and the perceived inequity

of deporting him. The Immigration Act of

1990, however, rescinded all JRAD’s, whether

issued “be fore, on, or after” November 29,

1990. Pub. L. No. 101-649, § 505, 104 Stat.

4978, 5050 (1990).

Thus, Renteria- G onzalez’s JRAD was no

longer effective in 1992 when the court relied

on it to vacate his conviction. Yet, the court

did not even consider the retroactive effect of

§ 505. 5 In other words, the court had no statutory ground w h atsoever to vacate the

conviction.

Second, the district court lacked equitable

authority to vacate the conviction. “[N]o adequate statutory or historical warrant” authorizes the federal courts to add new equitable remedies to the federal post-conviction remedial

scheme. U

nited States v. Reyes

, 945 F.2d 862,

866 (5t h Cir. 1991). This principle applies

with s pecial force to the immigration laws.

When a court vacates a n o t herwise final and

valid conviction on equitable grounds merely

to avoid the immigration-law consequences of

the conviction, it usurps Congress’ s plenary

power to set the terms and conditions of

American citizenship and the e xecutive’s dis5 Every circuit to address the question has held

that § 505 retroactively rescinded all JRAD’s and

did not thereby violate the Ex Po st Facto Clause.

See United States v. Yacoubian

, 24 F.3d 1 (9th

Cir. 1994); United States v. Koziel , 954 F.2d 831

(2d Cir. 1992); United States v. Bodr e , 948 F.2d

28 (1st Cir. 1991). We had not addressed this

question when the district court vacated RenteriaGonzalez’s conviction, and still have not.6

cr et io n to administer the immigration laws.

Plyler v. Doe

, 457 U.S. 20 2, 225 (1992);

Reyes , 945 F.2d at 866.

A purely equitable order to vacate a

conviction also encroaches on the President’s

power and discretion to pardon. R eyes

, 945

F.2d at 866. “Absent a clearer statutory or

historical basis, an article III court should not

arrogate such power unto itself.” I d.

Althoug h t he court fashioned its Order to

Vacate a “Writ f

o r Relief from Judgment”

under the A ll Writs Act, 28 U.S.C. § 1651,

and Reyes involved a petition for a wr it of

audita quer

e la

, we have extended Reyes to a

petition for relief from judgment under the All

W rits Act. U

nited States v. Banda

, 1 F.3d

354, 356 (5th Cir. 1993).

Third, and most seriously, the district court

probably lacked subject matter jurisdiction to

vacate Renteria-Gonzalez’s conviction . The

magistrate judge’s report does not address the

statutory source of the court’ s jurisdiction to

vacate. The district court presumably relied

on the general

federal question statute, 28

U.S.C. § 1331, and fashioned the Order to

Vacate under the All Writs Act, which allows

the federal courts to “issue all writs necessary

or appropriate in aid o f t heir respective

jurisdictions,” 28 U.S.C. § 1651.

The district co urt apparently thought that

the Order to Vacate was necessary to enforce

its earlier JRAD. After the Immigration Act of

1990, however, this rationale no longer could

supply a jurisdictional

hook, because the

JRAD was void. Moreover, the All Writs Act

does not confer an independent basis for subject matter jurisdiction. United States v. N.Y.

Tel. Co.

, 434 U.S. 159, 172 (1977); Newby v.

Enron Corp.

, 302 F.3d 295, 300 (5th Cir. 2002). 6

Notwithstanding these many errors, however, the INS cannot colla t erally attack the

Order to Vacate, even for want of jurisdiction,

because it did not directly appeal that order in

1992 

### SS an appeal in which it likely would have

been successful. 7 We therefore must treat the

Order to Vacate as proper in every respect, so

we turn to INS’s alternative argument, i.e.,

that a vacated federal conviction remains valid

for purposes of the immigration laws.

b.

Even if, arguendo, the Order to Vacate was

proper, Renteria-Gonzalez’s convictio n

remains valid for purposes of the immigration

laws. The INA defines “conviction” as

w ith respect to an alien, a fo rmal

judgment of guilt of the alien entered by

a court o r, if adjudication has been

withheld, where—

6 The Sec ond Circuit has held that a district

court does not retain jurisdiction to enforce a void

JRAD after the Immigration Act of 1990. United

States v. Tablie

, 166 F.3d 505 , 506-07 (2d Cir.

1999). B ut see Uni ted States v. Yacoubian , 24

F.3d 1, 5-6 (9th Cir. 19 94) (holding that district

court retained jurisdiction).

7 See Chicot County Drainage Dist. v. Baxter

State Bank

, 308 U.S. 371, 377 (1940) (holding that

a “decree sustaining [subject matter] jurisd iction

against attack, while op en to direct review, is r es

judicata in a collateral action”); Royal Ins. Co. of

Am. v. Quinn-L Capital Corp. , 960 F.2d 1286,

1293 (5th Cir. 1992) (“If the parties against whom

judgment w as rendered did not appeal, the

judgment becomes final and the court’s subject

mat ter jurisdiction is insulated from collateral

attack.”).7

(i) a judge or jury has fo und the alien

guilty or the alien has ente red a pl ea of

guilty or nolo contendere or has

admitted s ufficient 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).

No court has addressed the precise question

posed by this case, i.e., whether a vacated federal conviction remains valid under § 1101(a)-

(4 8)(A) as a deportable offense and thus as a

bar to judicial review under the jurisdi cti onal

sections of IIRIRA. Although it may seem

counterintuitive, the text, structure and history

of the INA suggest that a vacated federal conviction does remain valid f o r purposes of the

immigration laws. Moreover, several circuits,

including thi s court, have held that a vacated

state conviction remains valid under § 1101-

(a)(48)(A) 8 ; their persuasive reasoning applies

with equal fo rce to a vacated f ederal

conviction. The most remarkable t hing about how the

INA defines “conviction” is that it defines it at

all. “Convict ion” is a commonly used word

among lawyers and laymen. The INA would

have been perfectly comprehensible without a

definition of “conviction,” or at least no more

ambiguous than with such a definition. And,

ind eed, the INA did not define “conviction”

until the enactment of IIRI RA. 9 By adding

this definition, Congress must have intended it

to displace any intuitive, popular, or commonsense understanding.”

Section 1101(a)(48)(A) n o t ably omits any

exc eption for vacated convictions. 1 0 If

Congress had not wanted vacated convictions

to remain valid for the purpose of the

immigration laws, it easily could have included

an exce pt ion for vacated convictions in the

statutory definition. The problem of vacated

convictions occurred frequently enough that

Congress mus t have anticipated the problem,

yet it chose to remain silent. This lack of an

exception for vacated convi cti ons in

§ 1101(a)(48)(A) strongly implies t hat

Congress did not intend any such exception.

Moreover, the INA prov e s that Congress

knew how to write exceptions for certain kinds

of p o st -conviction relief. Section 1227(a)(2)

defines classes of aliens deportable because of

certain criminal offenses. As explained supra

part II.A, an alien deportable for these offenses 8 According to the BIA’s interpretation, vacated

state convictions remain valid under § 1101-

(a)(48)(A). I

n re Roldan-Santoyo

, 22 I. & N. Dec.

512 (B.I.A. 1999). The BIA has not addressed the

precise question whether a vacated federal conviction remains valid under § 1101(a)(48)(A). Thus,

we are n o t required to give Chevron deference to

the agency’s interpretation in Roldan-S antoyo

. But even if the two questions are similar enough to

come within the Chevron framework, we have held

that § 1101(a)(48)(A) plainly speaks to the precise

question of a vacated state conviction, and

therefore the Chevron analysis stops at step one.

M o osa v. INS

, 171 F.3d 994, 1010 n.9 (5th Cir.

1999). 9 Moosa

, 171 F.3d at 100 8 (“Again, it is

important to note that, pr ior to the enactment of

IIRIRA § 322(a) [8 U.S.C. § 1101(a)(48)(A)],

there was no definition of “conviction” in the immigration laws.”).

10 See United States v. Campbell

, 167 F.3d 94,

98 (2d Cir. 1999) (“[N]o provision excepts from

this definition a conviction that has b een vacated.”).8

may not obtain judicial review under either the

tr ansitional or the permanent rule. Section

1227( a)(2)(A)(v), however, states that

convictions for some of these offenses are not

grounds for deportati on if the convicted alien

receives “a full a nd unconditional pardon by

the President of the United State s or by the

Governor of any of the several States.” Just as

a pardoned conviction for these offenses is not

grounds for deportati on, it al so is not a

jurisdiction-st ripping offense under either the

transitional or the permanent rule. Section

1227(a)(2)(A)(v) thus creates an exception to

the definition o f “conviction” in §

1101(a)(48)(A) for certain pardoned

convictions.

Congress therefore knew how to create exceptions to § 1101(a)(48)(A). That it included

no exception for judicially vacated convictions

likely indicates that it merely wanted to restrict

to only the most directly accountable officers

the power to negate a conviction and thereby

block deportation.

The state of the law before Congress adopted § 110 1(a)(48)(A) in 1996 further shows

that it specifica l ly intended a vacated

conv ict io n to remain valid for the purpose of

the immigration laws. The BIA had struggled

with the meaning of “conviction” for years.

Murillo-Espinoza v. INS

, 261 F.3d 771, 774

(9th Cir. 2001). “Frustrated by the crazy quilt

of anomalous results that flowed from widely

disparate state rehab ilitative and diversionary

arrangements,” Herrera-Inirio v. INS

, 208

F.3d 299, 305 (1st Cir. 2000), the BIA finally

adopted a three-part definition of “conviction”

in In re Ozkok , 19 I. & N. Dec. 546 (B.I.A.

1998). The O zkok test for a “conviction” required that (1) an alien plead or be found guilty, (2) a judge order some kind of restraint or

punishment , and, (3) if not entered contemporaneously with the punishment, a

judgment of guilt could be entered without

further proceedings relating to guilt if the alien

violated his probation or other court order. I d.

at 551-52.

“This effort faile d to produce the desired

uniformity and Congress stepped in to fill the

void.” H errera-Inirio

, 208 F.3d at 306. Consequently, § 1101(a)(48)(A) expanded the Ozkok test by adding the first half of the

definition (“formal judgment of guilt of the

alien entered by a court”) and by omitting the

third part of the Ozkok test in the second half

of the definition. Moreover, Congress

“ de liberately broaden[ed] the scope of the

definition of ‘conviction’ beyond that adopted

by the Board

. . . in Matter of Ozkok .” H.R.

C ONF

. R EP

. N O

. 104-828, at 224 (1996 )

(quoted i n M

oosa

, 171 F.3d at 1002). In

Moosa

, we held that Congress meant what it

said in t he plain text of

section 1101(a)(48)(A): “Congress was well

aware of the varying interpreta tions of

‘conviction,’ but chose to enact the current

definition.” 171 F.3d at 1008.

This analysi s suggests that a vacated

conviction, federal or state, remains valid for

purposes of the immigration law s, and five

circ uit s, including this court, have concluded

that a vacated or other wise expunged state

co nviction remains valid under § 1101(a)-

(48)(A). 11 Although no court has addressed

11 See, e.g., Herrera-Inirio

, 208 F.3d at 304-06

(First Circuit) (state delayed adjudication of guilt);

Campbell

, 167 F.3d at 96-98 (Sec ond Circuit)

(federal sentencing case); Nwandu v. Crocetti

, 8

Fed. Appx. 162, 167 n.8 (4th C ir. 2001) (foreign

conviction vacated) ( dictum ); Moosa

, 171 F.3d at

999-1003, 1005-10 (Fifth Circuit) (state del ayed

adjudication of guilt); Murillo-Espinoza

, 261 F.3d

(continued...)9

the closely related question whether a vacated

federal conviction remains valid under § 1101-

(a)(48)(A), we see no good reason that thi s

textual, structural, and historical analysis from

the state conviction cases should not apply

with equal force t o a vacated federal

conviction.

Furthermore, the policies behind these cases 

### SS uniformity of federal law and consistency

in enforcement of the immigration laws 

### SSextend to a vacated federal conviction, as well.

If the mean ing of “conviction” depended on

state penal law, § 1101(a)(48)(A) could never

obtain a un i form interpretation, and aliens

co nvicted of identical crimes would face different immigration consequences based on the

fortuity of the state in which t hey committed

their crimes. The unbridled discretion of federal judges would lead to these same vices as

surely as would the vagaries of state law.

If anyone is to have this kind of discretion

in the enforcement of the immigration laws, it

should be the executive branch, which “must

exercise especially sensitive political functions

t hat implicate foreign relations.” I NS v.

Abudu

, 485 U.S. 94, 110 (1988). We

conclude, therefore, that the Order to Vacate

does not aff

ect Renteria-Gonzalez’s conviction

for the purpose of the immigration laws, so the

conviction remai ns valid under § 1101(a)-

(48)(A).

2.

Although, for purposes of the immigration

laws, Renteria-Gonzalez still has a conviction

for transporting illegal aliens, the question remains whether this conviction is an “aggravated felon y” conviction that bars

judicial review. We decide that the conviction

does not qualify as an “aggravated felony”

under the INA “as in effect a s of the date of

the enac t ment of” IIRIRA, so IIRIRA

§ 309(c)(4)(G) does not deprive us of

jurisdiction.

The INS’s argument presupposes that Renteria-Gonzalez ’ s conviction for illegally

transporting aliens is an “aggrav at ed felony.”

The INS, however, has confused the IIRIRA

definition of “aggravated felony” with the preIIRIRA definition(s).

The INS doubtless is correct that a

conviction for tran sporting illegal aliens is,

literally by definiti o n, an “aggravated felony”

under IIRIRA. 8 U.S.C. § 1101(a)(43)(N);

Ruiz-Romero

, 205 F .3d at 840. Moreover,

IIRIRA makes this new definition retroactive

“regardless of when the conviction occurred.”

IIRIRA § 321(c). Thus, if Renteria-Gonzalez

had been convicted after IIRIR A became effective, his conviction alone would be grounds

for deportati on. 8 U.S.C. § 1227(a)(2)(A)(iii).

Likewise, if the INS had begun deportati on

proceedings against him after IIRIRA took effect, his conviction for transporting illegal aliens would be a jurisdiction-strip ping offense

under the permanent rule, w hich uses the

IIRIRA definition of “aggravated felony” and

appl i es retroactively to pre-IIRIRA

convictions. 8 U.S.C. § 1252(a)(2)(C);

IIRIRA § 306(b). 12

11 (...continued)

at 773-74 (Ninth Circuit) ( s tate conviction vacated). 12 Of course, this analysis would apply also to

any alien with a post-IIRIRA conviction of transporting illegal aliens or with a pre-IIRIRA conviction oftransporting illegal aliens but whose deportation proceedings did not begin until after

IIRIRA became effective.10

Nonetheless, the transitional rule governs

the INS’s proceedings against RenteriaGonzalez, and that rule does not use the new,

post-IIRIRA definition of “aggravated felony .”

As mentioned supra part II.A, the transitional

rules and the permanent rules differ in only one

material respect, but that differen ce ti ps the

bala nce in this case. IIRIRA § 309(c)(4)(G)

withdraws jurisdict io n over a final order of

removal against an alien who is deportable by

reason o f having committed an “aggravated

felony” under the INA “as in effect as of the

date of the enactment of [IIR IRA].” We

t herefore must apply the definition of “aggravated fe lo ny” in effect on September 30,

1996, to determine whether IIRIRA § 309(c)-

(4)(G) withdraws our jurisdiction in this case.

Co ngress has amended the definition of

“aggr avat ed felony” in the INA four times

since Renteria-Gonzalez’s conviction. Unlike

IIRIRA, however, most of these amendments

w ere not retroacti ve. Instead, each

amendm e nt applied only to convictions

adjudged on or after the date of that respective

amendment, so supersed e d definitions still

govern past convictions. Thus, we look to the

codified definition of “aggravated felony” at

the time of Renteria-Gonzalez’s conviction.

The definition of “aggravated felony” in

October 1989 included only murder, drug trafficking, weapons trafficking, or an attem pt to

commit these crimes. 8 U.S.C. § 1101(a)(43)

(1988). Thus, Renteria-Gonzalez’s § 1324(a)

co nviction for transporting illegal aliens did

not qualify as an “aggravated felony” under the

INA “as in effect as of the date of the enactment of [IIRIRA].” 13 Without a qualifying “aggravated felony,” we have appellate

jurisdiction, and IIRIRA § 309(c)(4)(G) does

not bar judicial review of Renteria-Gonzalez’s

petition on the merits, 14 to which we now turn.

13 On September 30, 1996, Congress had most

recently amended the INA in the Antiterrorism and

(continued...) (...continued)

Effective Death Penalty Act of 1996 (“AEDPA”),

P ub. L. No. 104-132, 110 Stat. 1214 (1996).

Under AEDPA, the definition of “aggravated felony” included a § 1324(a) conviction for which the

term of imprisonment imposed was at least

five years. AEDPA § 440(e)(3). AEDPA further

made this definition retroactive as if it had been

included in § 222 of the Immigrat i on and Nationality Technical Corrections Act of 1994, Pub. L.

No. 103-416, § 222, 108 Stat. 4305, 4320 (1994)

(“INTCA”). AEDPA § 440(f). The INTCA

amendments applied only to convictions “entered

on or after the date of enactment of [INTC A].”

INTCA § 222(b). Thus, the older definition of

“aggravated felony” still governed Renteria-Gonzalez’s conviction, not withstanding the INTCA,

AEDPA, and IIRIRA amendments.

Even if the AEDPA amendments controlled

under IIRIRA

§ 309(c)(4)(G), however, our conclusion would be no different. AEDPA included a

§ 1324(a) conviction in the definition of “aggravat ed felony” only if the alien received a sentence of imprisonment of at lea st five years,

AEDPA § 440(e)(3), but Renteria-Gonzalez received a six-month sentence.

14 In general, IIRIRA dramatically restricts judicial review of final orders of removal. As we

observed in Nguyen v. INS

, 117 F.3d 206, 207 (5th

Cir. 1 9 97), IIRIRA § 309(c)(4)(G) “completely

forecloses our jurisdiction to review decision s of

the [BIA].” Our decision today does not challenge

or alter our holdi ng in N

guyen ; we conclude only

that Renteria

- Gonzalez has not committed a

jurisdiction-stripping offense under IIRIRA § 309-

(c)(4)(G).

This conclusion applies only in the rare instance

(continued...)11 III.

On two grounds, Renteria-Gonzalez urges

this court to grant his petition and reverse the

final order of removal. First, he argues that he

did not receive a fair heari ng before the IJ.

Second , he contends that the IJ and BIA

lacked juris diction because the INS had not

properly t erminated his temporary resident

status before instituting deportation

proceedings. Concluding that substantial

evidence supports the BIA’s decision, we deny

the petition for review.

A.

We generally review only the deci sion of

the BIA, no t that of the IJ. CarbajalGonzalez v. INS , 78 F.3d 194, 197 (5th Cir.

1996). The IJ’s errors are relevant only

insofar as they a ffect the BIA’s decision. I d.

We defer to the BIA’s factual findings if they

are supported by substantial evidence.

Mikhael v. INS

, 115 F.3d 299, 302 (5t h Cir.

1997). The substant ial evidence standard

requires only that the BIA’s d e cision have

so me basis in fact, not that we necessarily

agree with that board. C

arbajal-Gonzalez

, 78

F.3d at 197. We will affirm the BIA’s decision

unless the evidence compels a contrary

conc l usion, i.e., if no reasonable factfinder

could have agreed with the BIA. Id.

B.

Renteria-Gonzalez argues that, for two reasons, his hearing was unfair: (1) the INS did

not make reasonable efforts to locate and produce the illegal aliens he transported, and

(2) the IJ did not let himtest, on crossexamination, Horger’s knowledge of Spanish.

We disagree with both assertions.

1.

Renteria-Gonzalez insists that the INS

failed in its duty to produce, or attempt to produce, the illegal aliens he transported. Instead,

the INS produced only Ho rger, who testified

to th e aliens’ statements that RenteriaGonzalez and his accomplice, Bautista-Garcia,

had picked them up in Mexico for a fee. 15 The

INS also produced several Forms I-213, which

H o rger used to record the aliens’ statements

during his investigation.

Re nteri a-Gonzalez contends that this failure

to produce the aliens is unfair under Hernandez-Garza v. INS , 882 F.2d 945, 948 (5th

Cir. 1989), which held that “th e use of

affidavits from persons who are not ava ilable

for c ro ss-examination does not satisfy the

constitutional test of fundamental fairness unless the INS fi

rst establishes that despite reasonable efforts it was unable to secure the

prese nce o f the witness at the hearing.” In

Herna ndez-Garza , we held that the INS did

not satisfy this standard where an INS attorney

merely testified that he had sent letters to the

absent aliens but could not produce the copies

(...continued)

of a crimin al alien (1) whose deportation

proceedings began before April 1, 1997, and ended

more than thirty days after September 30, 1996,

and (2) whose conviction qualifies as a jurisdictionstripping offense under the IIRIRA definitions but

not under the pre-IIRIRA definitions . It just so

h appens that Renteria-Gonzalez fits into this

unusual category. 15 The INS did not rely on Renteria-Gonzalez’s

conviction at the hearing before the IJ, presumably

because the agency had concluded that the Order to

Vacate barred its use. The Order to Vacate did not

bar the deportation proceeding altogether, though,

because to deport an alien, the INA requires only a

showing of, not a conviction of, unlawful presence

in the United States and alien smuggling activities.

8 U.S.C. § 1227(a)(1)(B), (E)(i).12

of the letters. Id.

Hernandez-Garza is distinguishable from

Renteria-Gonzalez’s situation in two important

way s

. First, the INS relied on Horger’s

testimony, whereas in Hernandez-Garza the

INS relied on affidavits. The holding of Hernandez-Garza was express ly limited to

affidavits, and justifiably so.

Even if one supposes that Horger was lying

about the aliens’ statements 

### SS and no t even

Renteria-Gonzalez asserts he was 

### SSRenteriaGonzalez had the opportuni ty to crossexamine Horger about the statements. The IJ,

therefore, could exa m ine Horger’s demeanor

and tone to ascertain his credibility, which affects the weight given to the statements much

more than would the mere reading of a lifeless

affidavit. Moreover, Horger’s testimony about

the aliens’ statements was corroborated by the

Forms I-213, which anoth er circuit has

deemed “reliable d ocum ent[s].” G uerreroPerez v. INS , 242 F.3d 727, 729 n.2 (7th Cir.

2001). 16

Other evidence at the hearing buttressed

Horger’s testimony and undermined RenteriaGonzalez’s credibility. For example, RenteriaGonzal e z concealed his temporary residence

card in his sock and did not produce the card

when asked by Horger. Renteria-Gonzalez

also lied about his temporary resident status,

claiming, under interrogation by Horger, to be

an illegal alien. Furthermore, Renteria-Gon z alez and his

accompli ce, Bauti

sta-Garci a, contradicted each

other in th eir respective testimony. For

instance, Renteria-Gonzalez t estified that he

and Bautista-Garcia shopped for several hours

in Brownsville t he day before their arrest,

whereas Bautista-Garcia testified that they remained in their hotel all day. Such evidence,

coupled with Horger ’ s inherent credibility,

justified the IJ’s decision to credit Horger and

to discredit Renteria-Gonzalez.

Second, Renteria-Gonzalez does not

dispute that the INS attem pted to l ocate and

produce the aliens; he argues only that the

agency did not employ

t he most effective

means. By contrast, the petitioner in

Hernandez-Garza asserted that the I N S had

not even attempted to locate and produce the

aliens.

The INS admittedly did not make a

herculean effort to locate the alien witnesses in

the instant matter; its attorney told the IJ that

he had conducted “CIS searches” for the five

aliens. 17 Renteria-Gonzalez concedes that the

INS in fact conducted this search bu t objects

that it was not reasonably calculated to l ocate

and produce the aliens. He contends that the

INS could have maile d letters to the alien’s

known addresses in Mexico, though he admits

“the chances of

success would have been

minuscule.”

In Hernandez-Garza

, however, the INS asserted that it sent letters to the aliens but could

not produce copies of all the letters. Hernandez-Garza

, 882 F.2d at 948. The petitioner

16 Insofar as Rente

r ia-Gonzalez makes a hearsay-type objection

to the use of the Forms I-213,

we observe that these documents come within the

public records exception to the hearsay rule, F ED

. R. E VID

. 803(8), not that the hearsay rules apply to

deportation proceedings in the first place, Olabanji

v. INS , 973 F.2d 1232, 1234 (5th Cir. 1992). 17 According to Renteria-Gonzalez, CIS is a law

enforcement database; otherwise, the record does

not contain any information about CIS or th e

likelihood of success of a CIS search.13

there argued that the INS had not sent the letters at all, and t h e court seemed to agree,

holding that the attorney’s assertions, without

copies of the letters, co uld not establish that

the INS had made reasonable efforts to locate

and produce the aliens. I

d. Because RenteriaGonzalez admits that the INS conduc ted the

search, he is left with the heavy burden of

demonstrating that the sear ch was not a

reasonable effort. The IJ understandably

c oncluded that Renteria-Gonzalez had not

satisfied this burden with the bald asserti on

that letters might have been more successful.

No t only is Hernandez-Garza

distinguishable, but

Rent eria-Gonzalez

stumbles several times on appeal as he

contends that the INS did not make reasonable

efforts to locate and produce the aliens under

the reasoning of H

ernandez-Garza

. First,

Renteria-Gonzalez does not dispute Horger’s

veracity, and “people may not assert a cro ssexamination right to prevent the government

from est ablishing uncontested facts.”

Olabanji

, 973 F.2d at 1 234 n.1. Second,

Renteria-Gonzalez conc e des the futility of

attempting to locate the aliens by letter in

M exico, which amounts to conceding t h e

reasonableness of the INS’s efforts.

Third, Renteria-Gonzalez never explain s

how the INS could have compe lled the

presence of the aliens at an administrative

hearing in the United States, even if the agency

had successfully written to th e m in Mexico.

Given the distinctions between HernandezGarza and this case and Renteria-Gonzalez’s

admissions, th e BIA had substantial evidence

to conclu de that the INS’s failure to produce

the aliens did not result in an unfair hearing.

2.

Renteria- Go nzalez insists that, on crossexamination, the IJ did not let him test Horger’s knowledge of Spanish; he hypot hesizes

that Horger did not fully understand Spanish

an d therefore misunderstood the aliens’

statement s to him. Renteria-Gonzalez

contends that under Hernandez-Garza

, he had

a right to test Horger’s knowledge of Spanish,

because Horger’s language skills “were critical

if the [immigration ] judge was to admit and

give credence” to his testimony. HernandezGarza

, 882 F.2d at 948. Renteria-Gonzalez

argues that the IJ denied him this right by not

allowing Renteria-Gonzalez’s counsel to test

Horger’ s knowledge of Spanish by having

Horger speak with Renteria-Gonzalez in the

pr esence of the interpreter, who then could

testify to Horger’s knowledge of Spanish.

This argument is almost frivolous. Hernande z-Garza is easily distinguishable. There,

d efense counsel asked agents to transla te a

written document from Spanish to English, so

the IJ could t est the agents’ translations

against the interpreter’s translation. 882 F.2d

at 948. The H

ernandez-Garza court held that

the IJ had erred by refusing to allow this test,

because the interpreter merely wo u ld have

performed his ordinary duty by translating the

document for the IJ to test against the agents’

translations.

In the instant case, however, Renteria-Gonzalez wanted the interpreter to become an independent witness to the Spanish conversation

between Renteria-Gonzalez and Horger. 18

Mo re importantly, the IJ told RenteriaGonzalez t hat “[i]f you want to find some

othe r way to address his competence in

Spanish, you’re free to do it, but not that

way.” The BIA therefore had substantial

18 The IJ did not speak Spanish and hence could

not evaluate the conversation himself.14

ev idence to conclude that Renteria-Gonzalez

had a fair opportunity to test Horger’s

knowledge of Spanish.

C.

Renteria-Gonzalez aver s t hat the BIA and

IJ lacked jurisdiction over his deportati on proceedings. Before it may begin deportation

pro ceedings against an alien who has

committed a deportable offense, the INS must

terminate his temporary resident status. In re

Medrano

, 20 I. & N. Dec. 216 (B.I.A. 1990).

The INS sent Renteria-Gonzalez a notice of

intent to terminate his temporary resident status in September 1991 and terminated his status

in November 1991. The LAU affirmed the

termination in July 1992, and the INS did not

begin deportati on proceedings until January

1994, when it sent Renteria-Gonzalez an order

to show cause. Renteria-Gonzalez, however,

contends t hat his temporary resident status

was not properly terminated, because the September 1991 notice cited the incorrect section

of the INA as the grounds for termination. 19

And, because the INS did not proper l y

t erminate his temporary resident status,

Renteria-Gonzalez reasons that the BIA and IJ

lacked jurisdiction under Medrano

.

The sc r ivener’s error in the September

1991 no t ice did not nullify the termination of

Renteria-Gonzalez’ s tem

porary resi dent status.

Despite that error, the text of the noti ce unambiguously

notified Renteria-Gonzalez of the

reason for termination: “[Y]ou were convicted of Transporting an Illegal Alien Wit hin

the United States, a felony offense. This conviction ren d ers you ineligible for temporary

resident status.”

The Ninth Circuit recently and s ummarily

rejected an identical argument, holding that the

p etitioner “had sufficient notice of the conviction underl y i ng his deportation proceedings,

and any error in the Noti ce to Appear was

harmless.” C

how dhury v. INS , 249 F.3d 970,

973 n.2 (9th Cir. 2001). Moreover, RenteriaGonzalez obviously underst ood the INS’s

intent and its reason for t ermination, because

he rushed into district court shortly after

receiving the September 1991 notice and

asked the court to vacate his conviction.

Renteria-Gonzalez cannot now feign

ignorance. The September 1991 notice plainly

was sufficient. 20

The petition for review is DENIED.

ENDRECORD

19 The September 199 1 notice of intent to termina te cited former § 245A(b)(2)(A), 8 U.S.C.

§ 1255a(b)(2)(A) (1988), but it should have cited

former § 245A(b)(2)(B)(i)-(ii), 8 U.S.C. § 1255a-

(b)(2)(B)(i)-(ii) (1988). 20 In a stroke of boldness, Renteria-Gonzalez

also contends that the INS, so far from having the

power to deport him, had an affirmative duty to legalize his temporary resident status into permanent

resident status. To the contrary, however, because

the scrivener’s error in the September 1991 notice

was harmless, the INS effectively terminated his

temporary resident status, leaving no resid e ncy

status at all to adjust to permanent status.21 Herrera-Inirio v. I.N.S., 208 F.3d 299, 304-06 (1st Cir. 2000) (state delayed adjudication of

guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir. 1999) (federal sentencing case);

Nwandu v. Crocetti

, 8 F ed. Appx. 162, 167 n.8 (4th Cir. 2001) (foreign conviction allegedly

expunged); Moosa v. I.N.S., 171 F.3d 994, 1005-06 (5th Cir. 1999) (state delayed adjudication of

guilt); Murillo-Espinoza v. I.N.S., 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged).

22 A dditionally, the Eleventh Circuit, in the context of an equal protecti on challenge, has held that

an expunged California conviction qualified as a conviction under § 1101(a)(48)(A) and, thus, could

serve as a basis for removal. S ee Fernandez-Bernal v. Attorney Gen., 257 F.3d 1304, 1312-17 (11th

Cir. 2001). In that opinion, the Eleventh Circuit opined that there was a “budding disagreement” with

respect to whether § 1101(a)(48)(A) “who lly negate[d] the effect on removal cases of all state

rehabilitative measures that purport to expunge or otherwise remove a conviction or other record of

guilt.” I d. at 1314 (citing inter al ia L ujan-Armendariz v. I.N.S.

, 222 F.3d 728 (9th Cir. 2000)).

However, since the Eleventh Circuit’s opinion in Fernandez-Bernal, the Ninth Circuit has fallen in

line with the other courts that have addressed the issue. S ee Murillo-Espinoza v. I.N.S., 261 F.3d

771 (9th Cir. 2001). In Murillo-Espinoza, the Ninth Circuit deferred to the Board of Immigration

Appeals and h e ld that, in enacting § 1101(a)(48)(A), “Congress intended to establish a uniform

federal rule that precluded the recognition of subsequent state rehabili t at ive expungements of

convictions.” I

d. at 774 (citing In re Roldan-Santoyo

, Int. Dec. 3377, 1999 WL 126433 (BIA 1999)

(continued...) BENAVIDES, Circuit Judge, Specially Concurring:

Although I would reach the same result as the majority in the case at bar, I write separately

because se ct io n II(B)(1)(b) of the majority opinion paints with too broad a brush with respect to

whether a vacated conviction falls within the purview of the definition found in 8 U.S.C. § 1

101(a)(48)(A). Section 1101(a)(48)(A) provides that:

The term “conviction” mea ns, 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.

The majority states that five circuits, 21 i ncluding this Court, have concluded that a “vacated or

otherwise expunged state conviction remains valid under § 1101(a)(48)(A) .” Maj . op. at 8. 2 222 (...continued)

(en banc), order vacated o n other grounds sub nom. Lujan-Armendariz , 222 F.3d 728 (9th Cir.

2000)).

16 Although I have no quarrel with the proposition that convictions vacated pursuant to rehabilitative

provisions or expunge d co nvict ions remain valid for the purposes of § 1101(a)(48)(a), I would

emphasize that 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. Indeed, as set forth below, two of those sister circuit opinions

contain language recognizing a distinction between the two categories of vacaturs: vacaturs on the

merits versus rehabilitative vacaturs.

In Moosa v. I.N.S., 171 F.3d 994 (5th Cir. 1999), an immigration case, we addressed the question

whether the petitioner’ s successful completion of his deferred adjudication in Texas constituted a

conviction within the meaning of § 1101(a)(48)(A). Applying the plain language of the statute, we

held that because Moos a had entered a plea of guilty, and the judge had imposed a punishment, §

1101(a)(48)(A) encompassed a Texas deferred adjudication. I d. at 1005-06. We also stated that this

conclusion was in accord with the Second Circuit’s opinion in United States v. Campbell, 167 F.3d

94 (2d Cir. 1999). Moosa

, 171 F.3d at 1006. In C ampbell, a federal sentencing guidelines appeal,

the defendant’s sentence was enhanced based on a Texas conviction that had been set aside upon the

defendant’s successful completion of probation. More specifically, the sentencing guidelines provided

that a defendant’s offense level should be increased by sixteen steps if he had been convicted of an

“aggravated felony” prior to deportati on. U.S.S.G. § 2L1.2(b)(2) (1995)). In rejecting the

defendant’s argument that the enhancement should not apply because his state conviction had been

“vacated,” the court opined that the immigration laws do not indicate that “they are to be interpreted17

in accorda nce with state l aw.” I d. at 97. After quoting the definition of conviction in §

1101(a)(48)(A), the Court recognized that “[n]o pertinent provision in Title 8 gives controlling effect

to state law. And no provision excepts from this definition a conviction that has been vacated.” I d.

at 98. The Court concluded that because there was “no pertinent provision in either the immigration

statute or the Guidelines to suggest the applicability of state law, the question of whether a vacated

conviction remains a conviction for purposes of § 1326(b) and Guidelines § 2L1.2 is

. . . a question

of federal law.” Id. The Second Circuit explained that the “vacated” or “set aside” conviction did

qualify as a conviction upon which to base the enhancement beca use: (1) the defendant’s state

conviction had been set aside solely because his period of probation had expired and the conditions

of probation had been sati s factorily fulfilled; and (2) “[h]is conviction was not reversed, and the

vacatur order was not based on any showing of innocence or on any suggestion that the conviction

had been improperly obtained.” I d. Thus, the Court held that, for purposes of immigration offenses,

the vacatur order did not alter the conviction of the aggravated felony. Id.

S ubsequently, the First Circuit has concluded that “state rehabilitative programs that have the

effect of vacating a conviction other than on the merits or on a bas is tied to the violation of a

statutory or cons titutional right in the underlying criminal case have no bearing in determining

whether an alien is to be considered ‘convicted’ under section 1101(a)(48)(A).” Herrera-Inirio v.

I.N.S., 208 F.3d 299, 305 (1st Cir. 2000) (emphasis added) (citing inter alia Campbell, 167 F.3d at

98). The First Circuit further quoted at length from a committee report attached to the IIRIRA that

indicated Congress’s intent to broaden the definition of conviction by including “situations where a

judgment of guilt or imposition of sentence is suspended, conditioned upon the alien’s future good

behavior.” H

errerra-Inirio

, 208 F.3d at 305 (quoting H.R. Conf. Rep. No. 104-828, at 24 (1996))2 3 In I n re RODRIGUEZ-RUIZ, Interim Decision 3436, 2000 WL 1375514 (BIA 2000), an

immigration judge denied Rodriguez’s motion to terminate the removal proceedings and found him

removable based on his felony conviction that previously had been vacated pursuant to Article 440

of the New York Criminal Procedure Law. On appeal to the BIA, the INS argued that the conviction

had been vacated in order to avoid removal–not because of a defect in the criminal proceedings. The

BIA recognized that the order vacated the criminal conviction pursuant to a statutory provision that

involved neither expungement nor rehabilitation. Citing Campbell, 167 F.3d 94, the BIA declined

to question whether the state court “acted in accordance with its own state law

. . . .” Thus, the BIA

concluded that the vacated conviction did not qualify as a “conviction” under § 1101(a)(48)(A)).

18 (other citation omitted). Based on this report, t he First Circuit concluded that the “emphasis that

Congress placed on the original admission of guilt plainly indicates tha t 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.” I d. at 305 (emphasis in

original). Moreover, the Seventh Circuit, relying upon a decision of the Bo ard of Immigration

Appeals, 23 held that a state conviction vacated during a post-conviction scheme to remedy a

constitutional violation does not constitute a conviction as set forth in § 1101(a)(48)(A). S andoval

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

The common thread running through the above cases is that convictions set aside or vacated based

on events subsequent to the conviction–not because of a defect in the conviction itself–constitute

convictions within the meaning of § 1101( a)(48)(A). Likewise, in the instant case, Renteria’s

conviction was not vacated because there was a valid challenge to the underl ying criminal

proceedings. Thus, although I agree that the above cases indicate that Renteria’s vacated conviction

qualifies as a conviction

under § 1101(a)(48)(A), I would tailor the analysis more narrowly to the

facts at issue. Specifically, I would distinguish the instant vacatur from cases invo lving convictions

vacated because of a defect in the criminal proceedings.

Finally, the majority opinion states that “[a]lthough it may seem counterintuitive, the text, structure24 O f course, 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 in that the case at bar did not involve

such a vacatur.

19 and history of the INA suggest that a vacated federal conviction does remain valid for purposes of

the immigration laws.” Maj. Op. at 7 (emphasis added). To the extent this statement acknowledges

that the plain language of § 1101(a)(48)(A) does not provide that a conviction vacated on the merits

remains valid for immigration purposes, I agree.

I r e cognize that the provision at issue does not contain an express exception for convictions

vacated based on a legal defect. Nonetheless, the majo rity’s interpretation is in violation of the

“common mandate of statutory construction to avoid absurd results.” A tchison v. Collins, 288 F.3d

177, 181 (5th Cir. 2002). Applying t he majo rity’s holding to vacaturs based on the merits would

result in what I believe to be an absurd result and certainly not in keeping with the notion of American

judicial traditions. For instance, if the courts determine there was insufficient evidence, an involuntary

guilty plea or a violation

o f o t her constitutional or statutory rights, we customarily vacate such a

conviction. It would seem to be an absurd result to interpret the provision to encompass convictions

that state or federal courts have deemed deficient on the merits. In my view, such a judicial

determination operates to negate a conviction with respect to the merits.

In summary, I do not believe the majority opinion should be understood to indicate that a

conviction that has been vacated or reversed based on a defect in the underlying criminal proceeding

constitutes a conviction under § 1101(a)(48)(A). 24