Renteria-Gonzalez v. INS

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60364
_______________
RICARDO RENTERIA-GONZALEZ,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
November 11, 2002
Before SMITH and BENAVIDES, Circuit
Judges, and FITZWATER,* District Judge.
JERRY E. SMITH, Circuit Judge:
The Immigration and Naturalization Service
(“INS”) and Ricardo Renteria-Gonzalez have
wrangled for over a decade. Now that they
finally have reached this court, their case
provides yet another opportunity to interpret
the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub.
L. No. 104-208, 110 Stat. 3009-546 (1996).1
* District Judge of the Northern District of
Texas, sitting by designation.
1 We cite this statute using the abbreviation
“IIRIRA” followed by the section number from the
(continued...)

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2
In particular, the case presents a complicated
interpretive question involving the definition,
criminal alien removal, and jurisdictional
sections of IIRIRA.
Although Renteria-Gonzalez has an “ag-
gravated felony” conviction under the IIRIRA
definition, his conviction did not qualify as an
“aggravated felony” under pre-IIRIRA immi-
gration law. IIRIRA therefore does not de-
prive this court of jurisdiction over the petition
for review. Exercising that jurisdiction, we
deny the petition for review under the sub-
stantial evidence standard.
I.
Renteria-Gonzalez, a citizen of Mexico, ob-
tained 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 district court sen-
tenced him to six months’ confinement and
three years’ supervised release. The court also
issued a “judicial recommendation against de-
portation” (“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(b) (1988) (repealed by the Immigration Act of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
deportation proceedings in August 1990 by is-
suing an order to show cause based on Ren-
teria-Gonzalez’s unlawful entry into the United
States on the occasion when he transported
the illegal aliens. The INS presumably used
this allegation to avoid the JRAD on the trans-
porting conviction. Yet, the INS had not ter-
minated Renteria-Gonzalez’s temporary resi-
dent status either when he entered the United
States with the illegal aliens or when the
agency issued the order to show cause.
Thus, the INS voluntarily dismissed the
order to show cause in August 1991. But in
September 1991, the agency sent Renteria-
Gonzalez a notice of intent to terminate 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 Legalization
Appeals 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 February 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 vacat-
ed his conviction in October 1992 (the “Order
to Vacate”). The government immediately
moved the court to reconsider the Order to
Vacate, but the court denied the motion. The
government did not appeal the Order to
Vacate.
The INS began deportation proceedings
anew in January 1994 by issuing another order
to show cause, this time basing the order not
only on Renteria-Gonzalez’s alleged unlawful
entry and presence, but also on his alien
(...continued)
statute.
2 Although styled a “recommendation,” a JRAD
was “binding on the Attorney General.” United
States v. Castro, 26 F.3d 557, 560 (5th Cir. 1994)
(citing Janvier v. United States, 793 F.2d 449, 452
(2d Cir. 1986)).

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3
smuggling activities.3 The immigration judge
(“IJ”) held extensive hearings on the order at
which Renteria-Gonzalez, INS Border Patrol
Agent Lane Horger, and Antonio Bautista-
Garcia, Renteria-Gonzalez’s accomplice, tes-
tified.
The IJ’s decision 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 Renteria-
Gonzalez and Bautista-Garcia testified that
they picked up the illegal aliens at a rest stop
in the United States without knowledge of
their alien status. Based on internal in-
consistencies in the testimony of Renteria-
Gonzalez and Bautista-Garcia and other
circumstantial evidence, the IJ credited
Horger’s testimony and held that Renteria-
Gonzalez was deportable.
Renteria-Gonzalez timely appealed to the
Board of Immigration Appeals (“BIA”),
arguing that he had not received a fair hearing
because the INS had made no effort to obtain
the presence of the illegal aliens he
transported, and the IJ had not let him test
Horger’s knowledge of Spanish on cross-
examination. Renteria-Gonzalez also argued
that the IJ and BIA lacked jurisdiction because
the INS had not properly terminated his
temporary resident status before instituting
deportation proceedings. After an inexplicable
delay of nearly seven years, the BIA in April
2001 finally dismissed Renteria-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 Nationality 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 jur-
isdictional sections especially so, we first ex-
amine the relevant sections and the INS’s
seemingly well-crafted argument against juris-
diction. We then explain why Renteria-
Gonzalez’s conviction of transporting illegal
aliens within the United States was not an
“aggravated felony” conviction under pre-
IIRIRA immigration law that, in the case of an
“aggravated felony,” would strip this court of
jurisdiction to review a petition for review.
A.
IIRIRA has a transitional rule and a
permanent rule for judicial review of a final
order of removal. The transitional rule
appears only in IIRIRA § 309(c)(4)(G), not in
the United States Code. The permanent rule
appears as 8 U.S.C. § 1252(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
section 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 offense 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).

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4
section 241(a)(2)(A)(ii) of such Act (as
in effect on such date) for which both
predicate offenses are, without regard to
their date 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 per-
manent rule is identical, except that it omits
the three parentheticals. See 8 U.S.C. § 1252-
(a)(2)(C). As we explain, infra part II.B.2,
these parentheticals make all the difference in
this case.
The transitional rule governs Renteria-Gon-
zalez’s case. It applies to any alien “whose
deportation proceedings commence before
IIRIRA’s general effective date of April 1,
1997, and conclude more than thirty days after
its passage on September 30, 1996.” Lerma
de Garcia v. INS, 141 F.3d 215, 216 (5th Cir.
1998); IIRIRA § 309(c)(1), (4). Renteria-
Gonzalez’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 final order of removal
against an alien who is removable by reason of
having committed one of several criminal of-
fenses, one of which is an “aggravated felony.”
8 U.S.C. § 1227(a)(2)(A)(iii) (cross referenced
in IIRIRA § 309(c)(4)(G)). The INA now
defines (but once did not) the term
“aggravated felony,” and in great detail. 8
U.S.C. § 1101(a)(43). Among the crimes
included is transporting an illegal 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 transitional 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 com-
mitted” an aggravated felony. This language
does not require 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 aggravated felony. “What the INS
originally charged is of no consequence; so
long as the alien in fact is removable for
committing an aggravated felony, this court
has no jurisdiction, irrespective of whether the
INS originally sought removal for that
reason.” Lopez-Elias v. Reno, 209 F.3d 788,
793 (5th Cir. 2000), cert. 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 INS makes an elegantly logical ar-
gument against jurisdiction. Renteria-
Gonzalez was convicted of transporting illegal
aliens under § 1324(a). A § 1324(a)
conviction is an “aggravated felony” under
IIRIRA. An aggravated felony is a deportable
criminal offense under § 1227(a)(2)(A)(iii),
and IIRIRA § 309(c)(4)(G) withdraws
jurisdiction to review a final order of removal
4 Section 1227(a)(1)(E)(i) covers conduct simi-
lar to that encompassed by § 1324(a) but does not
requires a criminal conviction before an alien may
be deported for alien smuggling.

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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.
Renteria-Gonzalez responds to the INS’s
argument with two contentions. First, he rea-
sons that he no longer has a conviction,
because the district court vacated his
conviction in 1992. Second, he argues that his
conviction of transporting illegal aliens, even if
it remains valid, did not qualify as an
“aggravated felony” under pre-IIRIRA
immigration law and thus is not a jurisdiction-
stripping offense under IIRIRA §
309(c)(4)(G). Renteria-Gonzalez errs in
saying that his conviction is vacated for
purposes o f the immigration laws, but he is
correct that his conviction did not qualify as an
“aggravated felony” under pre-IIRIRA im-
migration law.
1.
Renteria-Gonzalez contends that he no
longer has a conviction, because the district
court vacated his conviction in 1992. The INS
responds t hat the Order to Vacate is null for
lack of subject matter jurisdiction or, in the al-
ternative, that a properly vacated federal con-
viction remains valid for purposes of the im-
migration laws, even if a district court has pur-
ported to vacate the conviction to avoid the
immigration-related consequences of the con-
viction. 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 vacated Renteria-Gonzalez’s
conviction. First, it lacked statutory authority.
As the magistrate judge’s report and
recommendation indicates, the court vacated
Renteria-Gonzalez’s conviction 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 “before, on, or after” November 29,
1990. Pub. L. No. 101-649, § 505, 104 Stat.
4978, 5050 (1990).
Thus, Renteria-Gonzalez’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 stat-
utory ground whatsoever to vacate the
conviction.
Second, the district court lacked equitable
authority to vacate the conviction. “[N]o ade-
quate statutory or historical warrant” authoriz-
es the federal courts to add new equitable rem-
edies to the federal post-conviction remedial
scheme. United States v. Reyes, 945 F.2d 862,
866 (5th Cir. 1991). This principle applies
with special force to the immigration laws.
When a court vacates an otherwise 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 executive’s dis-
5 Every circuit to address the question has held
that § 505 retroactively rescinded all JRAD’s and
did not thereby violate the Ex Post 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. Bodre, 948 F.2d
28 (1st Cir. 1991). We had not addressed this
question when the district court vacated Renteria-
Gonzalez’s conviction, and still have not.

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6
cretion to administer the immigration laws.
Plyler v. Doe, 457 U.S. 202, 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. Reyes, 945
F.2d at 866. “Absent a clearer statutory or
historical basis, an article III court should not
arrogate such power unto itself.” Id.
Although the court fashioned its Order to
Vacate a “Writ for Relief from Judgment”
under the All Writs Act, 28 U.S.C. § 1651,
and Reyes involved a petition for a writ of
audita querela, we have extended Reyes to a
petition for relief from judgment under the All
Writs Act. United 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 of their respective
jurisdictions,” 28 U.S.C. § 1651.
The district court 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 sub-
ject 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, how-
ever, the INS cannot collaterally attack the
Order to Vacate, even for want of jurisdiction,
because it did not directly appeal that order in
1992SSan 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 conviction
remains valid for purposes of the immigration
laws. The INA defines “conviction” as
with respect to an alien, a formal
judgment of guilt of the alien entered by
a court or, if adjudication has been
withheld, where—
6 The Second 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). But see United States v. Yacoubian, 24
F.3d 1, 5-6 (9th Cir. 1994) (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] jurisdiction
against attack, while open to direct review, is res
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 was rendered did not appeal, the
judgment becomes final and the court’s subject
matter jurisdiction is insulated from collateral
attack.”).

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7
(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. § 1101(a)(48)(A).
No court has addressed the precise question
posed by this case, i.e., whether a vacated fed-
eral conviction remains valid under § 1101(a)-
(48)(A) as a deportable offense and thus as a
bar to judicial review under the jurisdictional
sections of IIRIRA. Although it may seem
counterintuitive, the text, structure and history
of the INA suggest that a vacated federal con-
viction does remain valid for purposes of the
immigration laws. Moreover, several circuits,
including this court, have held that a vacated
state conviction remains valid under § 1101-
(a)(48)(A)8; their persuasive reasoning applies
with equal force to a vacated federal
conviction.
The most remarkable thing about how the
INA defines “conviction” is that it defines it at
all. “Conviction” 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,
indeed, the INA did not define “conviction”
until the enactment of IIRIRA.9 By adding
this definition, Congress must have intended it
to displace any intuitive, popular, or common-
sense understanding.”
Section 1101(a)(48)(A) notably omits any
exception for vacated convictions.10 If
Congress had not wanted vacated convictions
to remain valid for the purpose of the
immigration laws, it easily could have included
an exception for vacated convictions in the
statutory definition. The problem of vacated
convictions occurred frequently enough that
Congress must have anticipated the problem,
yet it chose to remain silent. This lack of an
exception for vacated convictions in
§ 1101(a)(48)(A) strongly implies that
Congress did not intend any such exception.
Moreover, the INA proves that Congress
knew how to write exceptions for certain kinds
of post-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). In re Roldan-Santoyo, 22 I. & N. Dec.
512 (B.I.A. 1999). The BIA has not addressed the
precise question whether a vacated federal convic-
tion remains valid under § 1101(a)(48)(A). Thus,
we are not required to give Chevron deference to
the agency’s interpretation in Roldan-Santoyo.
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.
Moosa v. INS, 171 F.3d 994, 1010 n.9 (5th Cir.
1999).
9 Moosa, 171 F.3d at 1008 (“Again, it is
important to note that, prior to the enactment of
IIRIRA § 322(a) [8 U.S.C. § 1101(a)(48)(A)],
there was no definition of “conviction” in the im-
migration 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 been va-
cated.”).

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8
may not obtain judicial review under either the
transitional or the permanent rule. Section
1227(a)(2)(A)(v), however, states that
convictions for some of these offenses are not
grounds for deportation if the convicted alien
receives “a full and unconditional pardon by
the President of the United States or by the
Governor of any of the several States.” Just as
a pardoned conviction for these offenses is not
grounds for deportation, it also is not a
jurisdiction-stripping offense under either the
transitional or the permanent rule. Section
1227(a)(2)(A)(v) thus creates an exception to
the definition of “conviction” in §
1101(a)(48)(A) for certain pardoned
convictions.
Congress therefore knew how to create ex-
ceptions 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 adopt-
ed § 1101(a)(48)(A) in 1996 further shows
that it specifically intended a vacated
conviction 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 rehabilitative 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 Ozkok test for a “conviction” re-
quired that (1) an alien plead or be found guil-
ty, (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. Id.
at 551-52.
“This effort failed to produce the desired
uniformity and Congress stepped in to fill the
void.” Herrera-Inirio, 208 F.3d at 306. Con-
sequently, § 1101(a)(48)(A) expanded the Oz-
kok 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
“deliberately broaden[ed] the scope of the
definition of ‘conviction’ beyond that adopted
by the Board . . . in Matter of Ozkok.” H.R.
CONF. REP. NO. 104-828, at 224 (1996)
(quoted in Moosa, 171 F.3d at 1002). In
Moosa, we held that Congress meant what it
s a i d i n t h e p l a i n t e x t o f
section 1101(a)(48)(A): “Congress was well
aware of the varying interpretations of
‘conviction,’ but chose to enact the current
definition.” 171 F.3d at 1008.
This analysis suggests that a vacated
conviction, federal or state, remains valid for
purposes of the immigration laws, and five
circuits, including this court, have concluded
that a vacated or otherwise expunged state
conviction 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 (Second Circuit)
(federal sentencing case); Nwandu v. Crocetti, 8
Fed. Appx. 162, 167 n.8 (4th Cir. 2001) (foreign
conviction vacated) (dictum); Moosa, 171 F.3d at
999-1003, 1005-10 (Fifth Circuit) (state delayed
adjudication of guilt); Murillo-Espinoza, 261 F.3d
(continued...)

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9
the closely related question whether a vacated
federal conviction remains valid under § 1101-
(a)(48)(A), we see no good reason that this
textual, structural, and historical analysis from
the state conviction cases should not apply
with equal force to a vacated federal
conviction.
Furthermore, the policies behind these cas-
esSSuniformity of federal law and consistency
in enforcement of the immigration lawsSSex-
tend to a vacated federal conviction, as well.
If the meaning of “conviction” depended on
state penal law, § 1101(a)(48)(A) could never
obtain a uniform interpretation, and aliens
convicted of identical crimes would face dif-
ferent immigration consequences based on the
fortuity of the state in which they committed
their crimes. The unbridled discretion of fed-
eral 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
that implicate foreign relations.” INS v.
Abudu, 485 U.S. 94, 110 (1988). We
conclude, therefore, that the Order to Vacate
does not affect Renteria-Gonzalez’s conviction
for the purpose of the immigration laws, so the
conviction remains 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 re-
mains whether this conviction is an
“aggravated felony” conviction that bars
judicial review. We decide that the conviction
does not qualify as an “aggravated felony”
under the INA “as in effect as of the date of
the enactment of” IIRIRA, so IIRIRA
§ 309(c)(4)(G) does not deprive us of
jurisdiction.
The INS’s argument presupposes that Ren-
teria-Gonzalez’s conviction for illegally
transporting aliens is an “aggravated felony.”
The INS, however, has confused the IIRIRA
definition of “aggravated felony” with the pre-
IIRIRA definition(s).
The INS doubtless is correct that a
conviction for transporting illegal aliens is,
literally by definition, 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 IIRIRA became ef-
fective, his conviction alone would be grounds
for deportation. 8 U.S.C. § 1227(a)(2)(A)(iii).
Likewise, if the INS had begun deportation
proceedings against him after IIRIRA took ef-
fect, his conviction for transporting illegal ali-
ens would be a jurisdiction-stripping offense
under the permanent rule, which uses the
IIRIRA definition of “aggravated felony” and
applies retroactively to pre-IIRIRA
convictions. 8 U.S.C. § 1252(a)(2)(C);
IIRIRA § 306(b).12
11(...continued)
at 773-74 (Ninth Circuit) (state conviction va-
cated).
12 Of course, this analysis would apply also to
any alien with a post-IIRIRA conviction of trans-
porting illegal aliens or with a pre-IIRIRA convic-
tion of transporting illegal aliens but whose de-
portation proceedings did not begin until after
IIRIRA became effective.

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10
Nonetheless, the transitional rule governs
the INS’s proceedings against Renteria-
Gonzalez, 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 difference tips the
balance in this case. IIRIRA § 309(c)(4)(G)
withdraws jurisdiction over a final order of
removal against an alien who is deportable by
reason of having committed an “aggravated
felony” under the INA “as in effect as of the
date of the enactment of [IIRIRA].” We
therefore must apply the definition of “ag-
gravated felony” in effect on September 30,
1996, to determine whether IIRIRA § 309(c)-
(4)(G) withdraws our jurisdiction in this case.
Congress has amended the definition of
“aggravated felony” in the INA four times
since Renteria-Gonzalez’s conviction. Unlike
IIRIRA, however, most of these amendments
were not retroactive. Instead, each
amendment applied only to convictions
adjudged on or after the date of that respective
amendment, so superseded 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 traf-
ficking, weapons trafficking, or an attempt to
commit these crimes. 8 U.S.C. § 1101(a)(43)
(1988). Thus, Renteria-Gonzalez’s § 1324(a)
conviction for transporting illegal aliens did
not qualify as an “aggravated felony” under the
INA “as in effect as of the date of the en-
actment 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”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Under AEDPA, the definition of “aggravated fel-
ony” 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 Immigration and Nation-
ality 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 [INTCA].”
INTCA § 222(b). Thus, the older definition of
“aggravated felony” still governed Renteria-Gon-
zalez’s conviction, notwithstanding the INTCA,
AEDPA, and IIRIRA amendments.
Even if the AEDPA amendments controlled
under IIRIRA § 309(c)(4)(G), however, our con-
clusion would be no different. AEDPA included a
§ 1324(a) conviction in the definition of “ag-
gravated felony” only if the alien received a sen-
tence of imprisonment of at least five years,
AEDPA § 440(e)(3), but Renteria-Gonzalez re-
ceived a six-month sentence.
14 In general, IIRIRA dramatically restricts ju-
dicial review of final orders of removal. As we
observed in Nguyen v. INS, 117 F.3d 206, 207 (5th
Cir. 1997), IIRIRA § 309(c)(4)(G) “completely
forecloses our jurisdiction to review decisions of
the [BIA].” Our decision today does not challenge
or alter our holding in Nguyen; 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...)

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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 hearing before the IJ.
Second, he contends that the IJ and BIA
lacked jurisdiction because the INS had not
properly terminated 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 decision of
the BIA, not that of the IJ. Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.
1996). The IJ’s errors are relevant only
insofar as they affect the BIA’s decision. Id.
We defer to the BIA’s factual findings if they
are supported by substantial evidence.
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). The substantial evidence standard
requires only that the BIA’s decision have
some basis in fact, not that we necessarily
agree with that board. Carbajal-Gonzalez, 78
F.3d at 197. We will affirm the BIA’s decision
unless the evidence compels a contrary
conclusion, i.e., if no reasonable factfinder
could have agreed with the BIA. Id.
B.
Renteria-Gonzalez argues that, for two rea-
sons, his hearing was unfair: (1) the INS did
not make reasonable efforts to locate and pro-
duce the illegal aliens he transported, and
(2) the IJ did not let him test, on cross-
examination, 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 pro-
duce, the illegal aliens he transported. Instead,
the INS produced only Horger, who testified
to the aliens’ statements that Renteria-
Gonzalez and his accomplice, Bautista-Garcia,
had picked them up in Mexico for a fee.15 The
INS also produced several Forms I-213, which
Horger used to record the aliens’ statements
during his investigation.
Renteria-Gonzalez contends that this failure
to produce the aliens is unfair under Her-
nandez-Garza v. INS, 882 F.2d 945, 948 (5th
Cir. 1989), which held that “the use of
affidavits from persons who are not available
for cross-examination does not satisfy the
constitutional test of fundamental fairness un-
less the INS first establishes that despite rea-
sonable efforts it was unable to secure the
presence of the witness at the hearing.” In
Hernandez-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 criminal 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 jurisdiction-
stripping offense under the IIRIRA definitions but
not under the pre-IIRIRA definitions. It just so
happens 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).

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12
of the letters. Id.
Hernandez-Garza is distinguishable from
Renteria-Gonzalez’s situation in two important
ways. First, the INS relied on Horger’s
testimony, whereas in Hernandez-Garza the
INS relied on affidavits. The holding of Her-
nandez-Garza was expressly limited to
affidavits, and justifiably so.
Even if one supposes that Horger was lying
about the aliens’ statementsSSand not even
Renteria-Gonzalez asserts he wasSSRenteria-
Gonzalez had the opportunity to cross-
examine Horger about the statements. The IJ,
therefore, could examine Horger’s demeanor
and tone to ascertain his credibility, which af-
fects 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 another circuit has
deemed “reliable document[s].” Guerrero-
Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir.
2001).16
Other evidence at the hearing buttressed
Horger’s testimony and undermined Renteria-
Gonzalez’s credibility. For example, Renteria-
Gonzalez 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-Gonzalez and his
accomplice, Bautista-Garcia, contradicted each
other in their respective testimony. For
instance, Renteria-Gonzalez testified that he
and Bautista-Garcia shopped for several hours
in Brownsville the day before their arrest,
whereas Bautista-Garcia testified that they re-
mained 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 attempted to locate and
produce the aliens; he argues only that the
agency did not employ the most effective
means. By contrast, the petitioner in
Hernandez-Garza asserted that the INS 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 but objects
that it was not reasonably calculated to locate
and produce the aliens. He contends that the
INS could have mailed 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 as-
serted that it sent letters to the aliens but could
not produce copies of all the letters. Hernan-
dez-Garza, 882 F.2d at 948. The petitioner 16 Insofar as Renteria-Gonzalez makes a hear-
say-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, FED.
R. EVID. 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 the
likelihood of success of a CIS search.

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13
there argued that the INS had not sent the let-
ters at all, and the court seemed to agree,
holding that the attorney’s assertions, without
copies of the letters, could not establish that
the INS had made reasonable efforts to locate
and produce the aliens. Id. Because Renteria-
Gonzalez admits that the INS conducted the
search, he is left with the heavy burden of
demonstrating that the search was not a
reasonable effort. The IJ understandably
concluded that Renteria-Gonzalez had not
satisfied this burden with the bald assertion
that letters might have been more successful.
No t only is Hernandez-Garza
distinguishable, but Renteria-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 Hernandez-Garza. First,
Renteria-Gonzalez does not dispute Horger’s
veracity, and “people may not assert a cross-
examination right to prevent the government
from establishing uncontested facts.”
Olabanji, 973 F.2d at 1234 n.1. Second,
Renteria-Gonzalez concedes the futility of
attempting to locate the aliens by letter in
Mexico, which amounts to conceding the
reasonableness of the INS’s efforts.
Third, Renteria-Gonzalez never explains
how the INS could have compelled the
presence of the aliens at an administrative
hearing in the United States, even if the agency
had successfully written to them in Mexico.
Given the distinctions between Hernandez-
Garza and this case and Renteria-Gonzalez’s
admissions, the BIA had substantial evidence
to conclude that the INS’s failure to produce
the aliens did not result in an unfair hearing.
2.
Renteria-Gonzalez insists that, on cross-
examination, the IJ did not let him test Hor-
ger’s knowledge of Spanish; he hypothesizes
that Horger did not fully understand Spanish
and therefore misunderstood the aliens’
statements 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. Hernandez-
Garza, 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
presence of the interpreter, who then could
testify to Horger’s knowledge of Spanish.
This argument is almost frivolous. Hernan-
dez-Garza is easily distinguishable. There,
defense counsel asked agents to translate a
written document from Spanish to English, so
the IJ could test the agents’ translations
against the interpreter’s translation. 882 F.2d
at 948. The Hernandez-Garza court held that
the IJ had erred by refusing to allow this test,
because the interpreter merely would have
performed his ordinary duty by translating the
document for the IJ to test against the agents’
translations.
In the instant case, however, Renteria-Gon-
zalez wanted the interpreter to become an in-
dependent witness to the Spanish conversation
between Renteria-Gonzalez and Horger.18
More importantly, the IJ told Renteria-
Gonzalez that “[i]f you want to find some
other 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.

-- 13 of 19 --

14
evidence to conclude that Renteria-Gonzalez
had a fair opportunity to test Horger’s
knowledge of Spanish.
C.
Renteria-Gonzalez avers that the BIA and
IJ lacked jurisdiction over his deportation pro-
ceedings. Before it may begin deportation
proceedings 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 stat-
us in September 1991 and terminated his status
in November 1991. The LAU affirmed the
termination in July 1992, and the INS did not
begin deportation proceedings until January
1994, when it sent Renteria-Gonzalez an order
to show cause. Renteria-Gonzalez, however,
contends that his temporary resident status
was not properly terminated, because the Sep-
tember 1991 notice cited the incorrect section
of the INA as the grounds for termination.19
And, because the INS did not properly
terminate his temporary resident status,
Renteria-Gonzalez reasons that the BIA and IJ
lacked jurisdiction under Medrano.
The scrivener’s error in the September
1991 notice did not nullify the termination of
Renteria-Gonzalez’s temporary resident status.
Despite that error, the text of the notice un-
ambiguously notified Renteria-Gonzalez of the
reason for termination: “[Y]ou were con-
victed of Transporting an Illegal Alien Within
the United States, a felony offense. This con-
viction renders you ineligible for temporary
resident status.”
The Ninth Circuit recently and summarily
rejected an identical argument, holding that the
petitioner “had sufficient notice of the con-
viction underlying his deportation proceedings,
and any error in the Notice to Appear was
harmless.” Chowdhury v. INS, 249 F.3d 970,
973 n.2 (9th Cir. 2001). Moreover, Renteria-
Gonzalez obviously understood the INS’s
intent and its reason for termination, 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 1991 notice of intent to ter-
minate 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 le-
galize 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 residency
status at all to adjust to permanent status.

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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 Fed. 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 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)
(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 section 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” 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.
The majority states that five circuits,21 including this Court, have concluded that a “vacated or
otherwise expunged state conviction remains valid under § 1101(a)(48)(A).” Maj. op. at 8.22

-- 15 of 19 --

22(...continued)
(en banc), order vacated on 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 expunged convictions 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 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 that “they are to be interpreted

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17
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 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.” Herrerra-Inirio, 208 F.3d at 305 (quoting H.R. Conf. Rep. No. 104-828, at 24 (1996))

-- 17 of 19 --

23 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 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, 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,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). 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 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 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 “[a]lthough it may seem counterintuitive, the text, structure

-- 18 of 19 --

24 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.
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 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).24

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