                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-10-2006

Lopez Gomez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3165




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"Lopez Gomez v. Atty Gen USA" (2006). 2006 Decisions. Paper 343.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/343


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                                        NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 05-3165



     CARLOS RODOLFO LOPEZ GOMEZ,

                                  Petitioner

                       v.

ATTORNEY GENERAL OF THE UNITED STATES,

                                  Respondent

             __________________

    On Petition for Review of an Order of the
        Board of Immigration Appeals
          (Agency No. A78-496-000)
              __________________

    Submitted under Third Circuit LAR 34.1(a)
                on July 14, 2006

BEFORE: SMITH, WEIS and ROTH, Circuit Judges

        (Opinion filed October 10, 2006)



                 OPINION
ROTH, Circuit Judge:

       This case presents the question of whether an alien who has been granted “first

offender” treatment for an initial state court drug conviction is “convicted” for the

purposes of the Immigration and Nationality Act (INA), and thus ineligible for legal

permanent residency. While our well-established precedent holds that “first offender”

treatment counts as a “conviction” for purposes of the INA, we lack jurisdiction over this

appeal and will therefore dismiss it.

       The facts of this case are well-known to the parties, so we will recite only the most

pertinent ones. In 1997, Carlos Rodolfo Lopez Gomez, a citizen of Guatemala, pled

guilty to cocaine possession in violation of 21 U.S.C. § 802. He was sentenced under 35

P.S. § 780-117 (Section 17), which provides for “first offender” treatment to drug

dependent offenders who plead nolo contendere or guilty to certain non-violent offenses:

       Upon fulfillment of the terms and conditions of probation, the court shall discharge
       such person and dismiss the proceedings against him. Discharge and dismissal
       shall be without adjudication of guilt and shall not constitute a conviction for any
       purpose whatsoever, including the penalties imposed for second or subsequent
       convictions.

35 P.S. § 780-117(3). Gomez’s “first offender” treatment was apparently unsuccessful;

he was convicted in 2001 for possession of crack cocaine. Gomez’s appeal from the 2001

conviction is pending.

       An approved visa petition has been filed for Gomez by his father, a lawful

permanent resident. The Immigration Court found Gomez inadmissible under §

212(a)(2)(A)(i)(II) of the INA, based on his 1997 and 2001 convictions and ordered his

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removal. The Board of Immigration Appeals affirmed the IJ’s ruling without opinion.

Gomez then filed a petition for review and motion for stay of removal with this Court.

       We lack subject matter jurisdiction over Gomez’s appeal and must therefore

dismiss it. 8 U.S.C. § 1252(a)(2)(C) provides that:

       Notwithstanding any other provision of law (statutory or nonstatutory), including
       section 2241 of title 28, United States Code, or any other habeas corpus provision,
       and sections 1361 and 1651 of such title, and except as provided in subparagraph
       (D), 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 212(a)(2) or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered
       by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to
       their date of commission, otherwise covered by section 237(a)(2)(A)(i).

8 U.S.C. § 1252(a)(2)(D) excepts only judicial “review of constitutional claims or

questions of law raised upon a petition for review filed with an appropriate court of

appeals in accordance with this section.” Gomez has challenged the removal order on the

grounds that his 1997 Section 17 conviction is not a conviction for purposes of the INA

and that his 1997 plea was not knowing and voluntary because he was unaware of the

immigration consequences. Gomez has not challenged the IJ’s consideration of his 2001

conviction.

       The 1997 and 2001 convictions are independent bases for the IJ’s removal order.

Thus, even if Gomez were to prevail in his challenge to the 1997 conviction, the order

would still stand on the 2001 conviction. Gomez’s appeal only qualifies for the §

1252(a)(2)(D) exception as to the 1997 conviction. Because the 2001 conviction is an

independent and unchallenged basis for the order of removal, the § 1252(a)(2)(D)


                                            -3-
exception does not apply, and, under § 1252(a)(2)(C), we lack subject matter jurisdiction.

       Moreover, even if we had jurisdiction to review the order of removal, we would

affirm under our precedent in Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. 2003), which

held that an individual who has been given first offender treatment under Section 17 is

considered to have a conviction for the purposes of the INA. Gomez urges that we

reverse Acosta as unconstitutional because it violates the equal protection clause of the

Constitution and conflicts with the Ninth Circuit’s decision in Lujan-Armendariz v. INS,

222 F.3d 728 (9th Cir. 2000). This we cannot do. Under the rules and traditions of this

Court, a published panel decision may be reversed only by the Court sitting en banc.

Third Circuit I.O.P. 9.1. Therefore, if we had jurisdiction, Acosta would govern this case.

       Gomez also contends that he did not enter a knowing and voluntary plea to his

1997 conviction because he was not informed of the immigration consequences of his

plea. For a plea to be knowing and voluntary, the defendant must be informed of the

direct consequences of the conviction; there is no requirement that the defendant be

informed of collateral consequences, such as deportation. United States v. Russell, 686

F.2d 35, 39 (D.C. Cir. 1982).

       We will therefore dismiss the appeal for lack of jurisdiction.




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