United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 13, 2005
Charles R. Fulbruge III
Clerk
No. 04-60268
FERDINANDO DISCIPIO
Petitioner
v.
JOHN ASHCROFT, U.S. ATTORNEY GENERAL
Respondent
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Order Vacating Previous Panel Decision
and Remanding to the Board of Immigration
Appeals to Allow Respondent to Terminate
Removal Proceedings Against Petitioner
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge:
Petitioner Ferdinando Discipio, a permanent resident of the
United States, became subject to deportation under the
Immigration and Nationality Act after a Massachusetts court
convicted him of possession with intent to distribute Percocet.
The Massachusetts court later overturned that conviction because
of procedural and substantive flaws in the proceeding. However,
the immigration judge presiding over Petitioner’s removal
proceeding found that the Massachusetts conviction remained valid
for immigration purposes under our holding in Renteria-Gonzalez
1
v. INS, 322 F.3d 804 (5th Cir. 2002). As a result, the
immigration judge ordered deportation, and the Board of
Immigration Appeals (“Board”) affirmed.1 Pursuant to Renteria-
Gonzalez, a panel of this Court reluctantly denied Petitioner’s
petition for review and expressed concerns over our controlling
precedent. See Discipio v. Ashcroft, 369 F.3d 472 (5th Cir.
2004).
Petitioner has now filed a petition for rehearing en banc.
In its Opposition to Petitioner’s Request for Rehearing En Banc,
Respondent has advised this Court that it is prepared to modify
its position and desires to terminate deportation proceedings
against Petitioner. It now wishes to apply to Petitioner’s case
the Board’s opinion in In re Pickering, 23 I. & N. Dec. 621 (BIA
2003), 2003 WL 21358480, where the Board held that convictions
vacated on the basis of procedural and substantive defects are
not valid convictions for purposes of immigration proceedings.
Respondent argues that because 8 U.S.C. § 1101(a)(48)(A)
(defining “conviction” for immigration purposes) is silent on the
effect of a vacated conviction on an alien’s immigration status,
1
Because Petitioner is being detained within the territory
under the jurisdiction of the Fifth Circuit, Renteria-Gonzales
applied to his case, which resulted in his being ordered
deported. Were he detained within the confines of any other
Circuit, the Board would not have ordered Petitioner deported.
See In re Pickering, 23 I. & N. Dec. 621, 624 n.2 (BIA 2003), 2003 WL
21358480 (declining to apply Renteria-Gonzales outside of the
Fifth Circuit).
2
this Court should defer to the Board’s permissible construction
of the statute. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999); Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984); Moosa v. INS, 171 F.3d 994, 1005
(5th Cir. 1999).
According to Respondent, the Board’s opinion in In re
Pickering constitutes a permissible construction of the statute
because it comprehensively addresses the effect of a vacated
conviction. See Aguirre-Aguirre, 526 U.S. at 424-25. There, the
Board held that convictions vacated on the basis of procedural
and substantive defects were not valid for purposes of
immigration, while those vacated because of post-conviction
events such as rehabilitation were to be given effect in
immigration proceedings. The Board noted that such a distinction
was in accord with federal court opinions addressing the issue
and thus declined to apply the contrary holding of Renteria-
Gonzales, 322 F.3d 804 (5th Cir. 2002)(holding that a conviction
remains valid regardless of the reason it was vacated), outside
the jurisdiction of this Court.
Respondent concludes that Petitioner’s conviction is not
valid for immigration purposes under In re Pickering because
Petitioner’s conviction was undisputedly vacated for procedural
and substantive defects. Respondent now wishes to give effect to
its modified position by terminating deportation proceedings.
3
With respect to other deportation proceedings arising or within
the jurisdiction of this Court or that may be pending on appeal,
Respondent has advised that the government is undertaking a
policy review to determine how it will proceed in those cases.
Petitioner has expressed no opposition to Respondent’s new
position, nor can we expect any, as vacating and remanding will
result in a favorable outcome for Petitioner. We need not, and
indeed a panel of this Court is without authority to contradict
the holding of the previous panel in Renteria-Gonzales. It is
clear, however, without expressing an opinion on Respondent’s
modified position, that Respondent wishes to exercise his
discretion to dismiss these proceedings. Such relief is
consistent with the Petitioner’s original request that his
deportation proceedings be set aside. In effect, Respondent’s
decision to dismiss deportation proceedings resolves any dispute
between the parties in this case.
Accordingly, the panel opinion dated April 29, 2004, in
Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), is vacated,
and Respondent’s request to remand this case to the Board of
Immigration Appeals is granted to allow Respondent to terminate
removal proceedings. Petitioner’s petition for rehearing en banc
is denied as moot because the opinion which it seeks to review is
vacated herein.
REQUEST TO VACATE PRIOR PANEL OPINION GRANTED AND CASE
4
REMANDED TO THE BOARD OF IMMIGRATION APPEALS TO ALLOW RESPONDENT
TO DISMISS PROCEEDINGS AS REQUESTED.
5