Concurring:
Although I would reach the same result as the majority in the case at bar, I write separately because section 11(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. § 1101(a)(48)(A). Section 1101(a)(48)(A) provides that:
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
*841(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,1 including this Court, have concluded that a “vacated or otherwise expunged state conviction remains valid under § 1101(a)(48)(A).” Maj. op. at 835.2 Although I have no quarrel with the proposition that convictions vacated pursuant to rehabilitative provisions or expunged convictions remain valid for the purposes of § 1101(a)(48)(a), I would emphasize that none of the convictions in the five eases 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 Moosa had entered a plea of guilty, and the judge had imposed a punishment, § 1101(a)(48)(A) encompassed a Texas deferred adjudication. Id. 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 Campbell, 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 deportation. 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 *842that “they are to be interpreted in accordance with state law.” Id. 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.” Id. 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 because: (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 satisfactorily 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.” Id. Thus, the Court held that, for purposes of immigration offenses, the vacatur order did not alter the conviction of the aggravated felony. Id.
Subsequently, 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 basis tied to the violation of a statutory or constitutional right in the underlying criminal case havé' 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.” Herrera-Inirio, 208 F.3d at 305 (quoting H.R. Conf. Rep. No. 104-828, at 24 (1996)) (other citation omitted). Based on this report, the First Circuit concluded that the “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.” Id. at 305 (emphasis in original). Moreover, the Seventh Circuit, relying upon a decision of the Board of Immigration Appeals,3 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). Sandoval v. I.N.S., 240 F.3d 577, 583-84 (7th Cir.2001).
The common thread running through the above cases is that convictions set *843aside 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 underlying 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 involving convictions vacated because of a defect in the criminal proceedings.
Finally, the majority opinion states that “[although it may seem counterintuitive, the text, structure and history of the INA suggest that a vacated federal conviction does remain valid for purposes of the immigration laws.” Maj. Op. at 838 (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 recognize that the provision at issue does not contain an express exception for convictions vacated based on a legal defect. Nonetheless, the majority’s interpretation is in violation of the “common mandate of statutory construction to avoid absurd results.” Atchison v. Collins, 288 F.3d 177, 181 (5th Cir.2002). Applying the majority’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 of other 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).4
. 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 Fed.Appx. 162, 167 n. 8 2001 WL 401484 (4th Cir.2001) (foreign conviction allegedly expunged); Moo-sa v. I.N.S., 171 F.3d 994, 1005-06 (5th Cir. 1999)(state delayed adjudication of guilt); Murillo-Bspinoza v. I.N.S., 261 F.3d 771, 773-74 (9th Cir.2001) (state conviction expunged).
. Additionally, the Eleventh Circuit, in the context of an equal protection 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. See 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) "wholly 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.” Id. at 1314 (citing inter alia Lujan-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. See 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 held that, in enacting § 1101(a)(48)(A), "Congress intended to establish a uniform federal rule that precluded the recognition of subsequent state rehabilitative expungements of convictions.” Id. at 774 (citing In re Roldan-Santoyo, Int. Dec. 3377, 1999 WL 126433 (BIA 1999) (en banc), order vacated on other grounds sub nom. Lujan-Armendariz, 222 F.3d 728 (9th Cir.2000)).
. In In 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 bas.ed 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).
. Of 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.