United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 29, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60268
FERDINANDO DISCIPIO,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Ferdinando Discipio, a native and citizen of
Brazil, became a permanent resident of the United States in 1970.
In 2002, Mr. Discipio became subject to removal after a
Massachusetts court convicted him of possession with intent to
distribute Percocet. A Massachusetts court later overturned Mr.
Discipio’s conviction because of procedural and substantive flaws
in the underlying proceeding and granted him a new trial.1
Nevertheless, based on our holding in Renteria-Gonzalez v. INS, 322
1
The Government does not dispute that the Massachusetts conviction was
overturned because of flaws in the underlying proceeding or contend that the
conviction was vacated for equitable or rehabilitative reasons.
No. 04-60268
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F.3d 804 (5th Cir. 2002), the immigration judge found that Mr.
Discipio’s conviction remained valid for immigration purposes and
ordered him removed. The Bureau of Immigration Appeals affirmed,
and Mr. Discipio filed the instant petition for review and motion
to stay deportation. The Government responded with a motion to
dismiss the petition for lack of jurisdiction.
Had Mr. Discipio’s conviction stood, his petition would
unquestionably fall under a provision of the Immigration and
Nationality Act (“INA”) that bars federal courts from reviewing
orders of removal against aliens removable for having committed
certain crimes, 8 U.S.C.A. § 1252(a)(2)(C) (West 1999).2 In our
view, it should make a difference that a court has overturned his
conviction and ordered a new trial. Because of the prior panel
decision in Renteria-Gonzalez, however, we must grant the
Government’s motion to dismiss Mr. Discipio’s petition for review
and deny Mr. Discipio’s motion to stay deportation.3
In Renteria-Gonzalez, the petitioner immigrant pleaded guilty
in federal court to transporting illegal aliens within the United
2
That provision states:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of
having committed a criminal offense covered in section
1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of
this title, or any offense covered by section
1227(a)(2)(A)(ii) of this title for which both predicate
offenses are, without regard to their date of
commission, otherwise covered by section
1227(a)(2)(A)(i) of this title.
8 U.S.C.A. § 1252(a)(2)(C).
3
Because the Government’s motion to dismiss is dispositive of this case, we
principally discuss that motion rather than Mr. Discipio’s motion to stay
deportation.
No. 04-60268
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States. 322 F.3d at 808. The district court accepted the plea but
entered a “judicial recommendation against deportation.” Id.
Later, INS sought removal. Id. The district court, evidently
seeking to enforce its own recommendation against deportation,
vacated the petitioner’s conviction. Id. INS, however,
reinitiated deportation proceedings. Id. at 809. An immigration
judge ordered the petitioner deported, and the Bureau of
Immigration Appeals affirmed. Id.
On petition for review, the majority in Renteria-Gonzalez held
that “the vacated conviction remain[ed] valid for purposes of the
immigration laws.” Id. at 811.4 The majority founded its opinion
on “the text, structure, and history of the INA,” all of which, the
majority said, “suggest[ed] that a vacated federal conviction does
remain valid.” Id. at 812.
Although the vacatur at issue was (1) of questionable
legitimacy and (2) apparently designed solely to avoid the
immigration consequences of the conviction, the majority in
Renteria-Gonzalez failed to tailor its discussion of the term
4
The INA defines conviction 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 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.A. § 1101(a)(48)(A) (West 1999).
No. 04-60268
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“conviction” to the facts before it and recognized no exception for
cases, like Mr. Discipio’s, in which a court has overturned a
conviction because of a defect in the underlying criminal
proceeding.
As the special concurrence in Renteria-Gonzalez pointed out,
the majority “paint[ed] with too broad a brush.” Id. at 820. The
majority maintained that “five circuits, including this court, have
concluded that a vacated or otherwise expunged state conviction
remains valid” for purposes of immigration law. Id. at 814. None
of the cases cited by the majority, however, hold or imply that a
conviction vacated because of procedural or substantive flaws is a
conviction under the INA. These cases support the proposition,
with which we agree, that a conviction vacated for rehabilitative
purposes remains valid under the INA. See Murillo-Espinoza v. INS,
261 F.3d 771, 773-74 (9th Cir. 2001); Herrera-Inirio v. United
States, 208 F.3d 299, 305-06 (1st Cir. 2000)); Moosa v. INS, 171
F.2d 994, 1005-06, 1009 (5th Cir. 1999); cf. United States v.
Campbell, 167 F.3d 94, 96-98 (2d Cir. 1999) (holding conviction
vacated for rehabilitative purposes valid for purposes of
sentencing guidelines).5 Far from being consistent with precedent,
5
The majority also relied on Nwandu v. Crocetti, 8 Fed. Appx. 162 (4th Cir.
2001) (per curiam), in which the Fourth Circuit upheld an immigration judge’s
finding that a petitioner’s conviction had not been expunged, id. at 166-67, but
commented in a footnote that under the immigration laws, “no apparent effect is
given to court actions which purport to expunge, dismiss, cancel, vacate,
discharge, or otherwise remove a guilty plea or other record of conviction,” id.
at 167 n.8. Even were this comment not pure dictum, the Fourth Circuit itself
would not cite it as precedent, see 4th Cir. R. 36(c).
No. 04-60268
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the majority’s overly broad formulation of “conviction” ran counter
to two other circuits’ understanding of the term. See Sandoval v.
INS, 240 F.3d 577, 583 (7th Cir. 2001) (holding conviction vacated
because of involuntary guilty plea not valid for INA purposes);
Herrera-Inirio, 208 F.3d at 305 (“[S]tate rehabilitative programs
that have the effect of vacating a conviction other than on the
merits or on a basis tied to the violation of a statutory or
constitutional right in the underlying criminal case have no
bearing in determining whether an alien is to be considered
‘convicted.’”) (emphasis added). That our Circuit is now out of
step with the rest of the nation is punctuated by the fact that the
Bureau of Immigration Appeals applies the broad understanding of
“conviction” embraced in Renteria-Gonzalez only in the Fifth
Circuit. See In re Pickering, 23 I. & N. Dec. 621, 624 n.2 (B.I.A.
2003).
Nor did the rationale relied upon by the Renteria-Gonzalez
majority support the breadth of its conclusion. The majority
assumed that Congress was aware that convictions would be vacated
and reasoned that, by recognizing exceptions for pardoned
convictions only, Congress intended to rule out exceptions for all
vacated convictions irrespective of the reason for which the
conviction was vacated. 322 F.3d at 813. This logic is dubious,
especially since the notion that a vacated conviction counts for
INA purposes is, as the majority admitted, “counterintuitive.” Id.
at 812. The majority also worried that the “unbridled discretion
No. 04-60268
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of federal judges” would frustrate Congress’s intent to ensure the
uniform application of federal immigration law. Id. at 814.
Convictions vacated at the discretion of federal judges, like the
conviction at issue in Renteria-Gonzalez, may threaten uniform
application of immigration laws. When a court vacates a conviction
because of defects in the underlying criminal proceeding, however,
it is not exercising “unbridled discretion,” but enforcing the
statutory and constitutional rights that ensure fair treatment of
criminal defendants.
Because the majority in Renteria-Gonzalez has interpreted the
term “conviction” so broadly, an immigrant convicted of certain
offenses is removable even if that conviction is vacated by an
appellate court for insufficient evidence, procedural errors, or
constitutional violations. Thus, a person completely exonerated by
the courts may nonetheless face removal as a convicted criminal.
We should interpret statutes to avoid results so patently absurd,
see Atchison v. Collins, 288 F.3d 177, 181 (5th Cir. 2002), and
constitutionally questionable, see In re Needham, 354 F.3d 340, 345
n.8 (5th Cir. 2003).
Nonetheless, we cannot revisit Renteria-Gonzalez. In the
absence of an intervening Supreme Court decision, no subsequent
panel may overrule the decisions of another panel or hold that a
prior decision applies only on the limited facts set forth in that
opinion. United States v. Smith, 354 F.3d 390, 399 (5th Cir.
No. 04-60268
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2003). Until the Fifth Circuit en banc or the Supreme Court
reforms Renteria-Gonzalez, we must apply that decision as written.
Therefore, we reluctantly grant the Government’s motion to
dismiss the petition for review for lack of jurisdiction.
Accordingly, we deny as moot the Government’s alternative request
to extend time to file the administrative record. We DENY Mr.
Discipio’s motion for a stay pending review, a motion that, absent
Renteria-Gonzalez, would have been granted. Because the
petitioner’s imminent deportation could render moot any further
consideration of this case en banc, however, we stay petitioner’s
deportation until the Clerk of this Court issues the mandate in
this case.