     05-5909
     Saleh v. Gonzales

 1                             UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4
 5                                         -------------
 6
 7                                       August Term 2006
 8
 9     Argued: (April 30, 2007                              Decided: July 17, 2007
10                                                         Amended: August 3, 2007)
11
12                                     Docket No. 05-5909-ag
13
14   --------------------------------------------------X
15
16   YASSER NASSER SALEH,
17
18                                   Petitioner,
19
20                       - against -
21
22   ALBERTO GONZALES, Attorney General of the United States,
23
24                                   Respondent.
25
26   --------------------------------------------------X
27
28           Before:          FEINBERG, SOTOMAYOR, and HALL, Circuit Judges.
29
30        Petitioner seeks review of a decision of the Board of
31   Immigration Appeals affirming decisions of the Immigration Judge
32   denying his motion to terminate removal proceedings, finding him
33   removable, and denying his application for relief.
34
35           Petition for review denied.
36
37                            ERIC    W. SCHULTZ, Sacks, Kolken & Schultz,
38                                   Buffalo, New York, for Petitioner.
39
40                            SHANE CARGO, Assistant United States Attorney,
41                                 (Michael J. Garcia, United States Attorney,
42                                 Sara L. Shudofsky, Assistant United States
43                                 Attorney, on the brief), United States
44                                 Attorney’s Office for the Southern District
45                                 of New York, for Respondent.
46
47
 1   FEINBERG, Circuit Judge:

 2        Yasser Nasser Saleh, a lawful permanent resident of the

 3   United   States,       was   charged    as    removable   under   section

 4   237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”),

 5   8 U.S.C. § 1227(a)(2)(A)(i).           The basis of the charge was his

 6   conviction in state court of receiving stolen property, which is

 7   a removable offense, i.e., a “crime involving moral turpitude”

 8   (“CIMT”) for which a sentence of one year or longer could have

 9   been imposed.      In an effort to escape the adverse immigration

10   consequences of that conviction, Saleh thereafter obtained an

11   amendment of the judgment so that he instead stood convicted of

12   petty theft, which is not a removable offense.

13        In this petition, Saleh seeks review of the decision of the

14   Board of Immigration Appeals (“BIA”) affirming decisions of the

15   Immigration Judge (“IJ”) (A) rejecting Saleh’s argument that he

16   no longer stands convicted of a removable offense and therefore

17   denying his motion to terminate his removal proceedings and (B)

18   finding Saleh removable as charged and denying his application

19   for relief from removal.        In re Saleh, No. A41 982 414 (B.I.A.

20   Oct. 4, 2005), aff’g No. A41 982 414 (Immig. Ct. Buffalo Apr. 22,

21   2004).

22        In reviewing these decisions, the principal question before

23   us is whether the BIA erred in concluding that Saleh remains

24   “convicted”   of   a    removable   offense    for   federal   immigration


                                         -2-
 1   purposes even though the state court amended its judgment of

 2   conviction to effectively expunge his conviction of a removable

 3   offense under state law.         For the reasons set forth below, we

 4   hold that the BIA did not err because the amendment was secured

 5   solely to aid Saleh in avoiding immigration consequences and was

 6   not based on any procedural or substantive defect in the original

 7   conviction.    We therefore deny the petition.

 8                               I. BACKGROUND

 9          Saleh, a native and citizen of Yemen, was admitted to the

10   United States as a lawful permanent resident in 1990.            In 1993,

11   Saleh was convicted in California state court,              following his

12   plea   of   nolo   contendere,    of   receiving   stolen    property   in

13   violation of section 496(a) of the California Penal Code.1              The

14   offense carries a maximum sentence of one-year imprisonment, see

15   Cal. Pen. Code § 496(a), although the court imposed a lower




             1
             The statute provides, in pertinent part, that “[e]very
      person who buys or receives any property that has been stolen or
      that has been obtained in any manner constituting theft or
      extortion, knowing the property to be so stolen or obtained, or
      who conceals, sells, withholds, or aids in concealing, selling,
      or withholding any property from the owner, knowing the property
      to be so stolen or obtained, shall be punished by imprisonment
      in a state prison, or in a county jail for not more than one
      year.”   Cal. Pen. Code § 496(a).    Saleh was convicted under
      section 496.1 of the California Penal Code. That provision has
      since been recodified as section 496(a).       Throughout, this
      opinion references the provision at its current location in
      section 496(a).

                                         -3-
 1   sentence.2 In July 2001, the Immigration     and Naturalization

 2   Service (“INS”) commenced removal proceedings,3 charging that

 3   Saleh was removable under 8 U.S.C. § 1227(a)(2)(A)(i) because his

 4   1993 crime qualifies as a CIMT, committed within 10 years after

 5   the date of admission, for which a sentence of one year or longer

 6   could have been imposed.

 7        Subsequently, for the announced purpose of escaping adverse

 8   immigration consequences, Saleh moved in California state court

 9   for an amendment of the judgment convicting him of receiving

10   stolen property, effective nunc pro tunc, so that he would

11   instead stand convicted of petty theft in violation of section

12   488 of the California Penal Code.   Because this is not a crime

13   for which a sentence of one year or longer could have been

14   imposed, it is not a removable offense.        In a declaration

15   accompanying Saleh’s motion, his counsel expressly referred to

16   the immigration consequences of Saleh’s original conviction,


           2
             This was neither Saleh’s first nor last brush with the
      law.   He had already been convicted in 1992 of unlawfully
      discharging a firearm and driving while intoxicated, and was
      thereafter convicted in 1997 of criminal mischief, in 1998 of
      driving while intoxicated, and in 2000 of driving while
      intoxicated.
           3
             On March 1, 2003, the INS was reconstituted into two
      agencies, the Bureau of Immigration and Customs Enforcement and
      the U.S. Citizenship and Immigration Services, both within the
      Department of Homeland Security. See Jian Hui Shao v. Bd. of
      Immigration Appeals, 465 F.3d 497, 499 n.3 (2d Cir. 2006)
      Because the proceedings in this case began before that date, we
      will continue to refer to the agency as the “INS.”

                                   -4-
 1   stating that “the alternative disposition of petty theft, which

 2   carries a six month maximum sentence would not have the adverse

 3   immigration consequences.”   Moreover, no evidence or argument

 4   presented to that court identified any substantive or procedural

 5   defects in Saleh’s conviction.    The California court granted the

 6   motion.

 7        Saleh thereafter asked the IJ to terminate the agency’s

 8   removal proceedings, arguing that petty theft is not a removable

 9   offense.   The IJ denied the motion, reasoning that, despite the

10   California court’s amendment to the judgment of conviction, Saleh

11   remained “convicted” of receiving stolen property, a removable

12   offense for federal immigration purposes, because the amendment

13   was not “based on any showing of innocence or any suggestion that

14   the conviction had been improperly obtained.”     Instead, the IJ

15   found that the conviction was amended “solely for the purpose of

16   circumventing the immigration laws of the United States.”4

17        After the IJ denied Saleh’s motion to terminate his removal

18   proceedings and the BIA declined to entertain his interlocutory

           4
             Although the Government bears the burden of proving, by
      clear and convincing evidence, that Saleh is removable, see 8
      U.S.C. § 1229a(c)(3)(A); Zerrei v. Gonzales, 471 F.3d 342, 345
      (2d Cir. 2006) (per curiam); see also Pickering v. Gonzales, 465
      F.3d 263, 268-69 (6th Cir. 2006); Cruz-Garza v. Ashcroft, 396
      F.3d 1125, 1130 (10th Cir. 2005), Saleh did not dispute before
      the IJ or the BIA or in his brief in this appeal that the
      California court amended the judgment of conviction to help him
      avoid immigration hardships, so we deem any argument to the
      contrary waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
      542 n.1 (2d Cir. 2005).

                                      -5-
 1   appeal of that decision, Saleh contested removability and sought

 2   relief       from   removal.       He   initially       filed   a   Form    I-191,    a

 3   prerequisite to obtaining a waiver of deportation under former

 4   section       212(c)    of   the    INA.         Subsequently,      however,    Saleh

 5   abandoned his application for 212(c) relief and instead filed a

 6   motion to substitute an application for cancellation of removal.5

 7   The IJ found Saleh removable and denied his application for

 8   cancellation of removal as untimely.

 9         The BIA adopted and affirmed the IJ’s decision and dismissed

10   the   appeal.          Relying     on   its    prior    decision     in    Matter    of

11   Pickering, 23 I. & N. Dec. 621 (BIA 2003),                 the Board agreed with

12   the IJ that Saleh remained “convicted” of a removable offense for

13   federal       immigration      purposes       because    the    amendment      of   the

14   judgment of conviction was not based on “any substantive or

15   procedural defect in the underlying criminal proceedings,” and

16   Saleh was therefore removable. Saleh filed a timely petition for

17   review.

18                                       II. ANALYSIS

19         In his petition, Saleh argues that the BIA erred in finding

20   him removable and in denying his application for cancellation of

21   removal.       In support, he argues principally that (A) the BIA’s


              5
             Saleh abandoned his 212(c) application because, after
      filing the Form I-191, his counsel determined that Saleh had
      also been convicted of a firearms offense, see supra note 2,
      which rendered him ineligible for 212(c) relief.

                                                -6-
 1   interpretation of the INA, under which he remains convicted of a

 2   removable   offense,        (1)   is   not    entitled   to    deference   under

 3   Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

 4   467 U.S. 837 (1984) and (2) violates 28 U.S.C. § 1738, which

 5   obliges federal courts to give full faith and credit to state

 6   acts,   records,      and    judicial    proceedings;     and     (B)   the   BIA

 7   erroneously concluded that he was ineligible for cancellation of

 8   removal.    We reject each of his arguments.

 9        A.     Did the BIA err in concluding that Saleh remains
10               convicted   of  a   removable offense for federal
11               immigration purposes?

12               1.     Is the BIA’s interpretation of the INA at issue
13                      in this case entitled to deference under Chevron?
14
15        The BIA determined that Saleh was removable pursuant to 8

16   U.S.C. § 1227(a)(2)(A)(i), which makes removable any alien who

17   “(I) is convicted of a crime involving moral turpitude committed

18   within five years (or 10 years in the case of an alien provided

19   lawful permanent resident status . . .) after the date of

20   admission, and (II) is convicted of a crime for which a sentence

21   of one year      or   longer may be imposed.”                 The BIA properly

22   concluded that Saleh’s original conviction for receiving stolen

23   property, in violation of Cal. Pen. Code § 496(a), satisfies

24   these requirements.          See Michel v. INS, 206 F.3d 253, 263 (2d

25   Cir. 2000).      Although Saleh thus stood convicted of a removable

26   offense under state law at one time, he subsequently secured an

27   amendment of the State’s judgment in an effort to avoid adverse

                                             -7-
 1   immigration consequences and not because of any procedural or

 2   substantive defect in the original conviction.          Therefore, the

 3   issue before us is whether, under these circumstances, Saleh

 4   remains    “convicted”   of   a   removable   offense    for   federal

 5   immigration purposes, viz. within the meaning of 8 U.S.C. §

 6   1227(a)(2)(A)(i) and the INA’s definition of “conviction,” 8

 7   U.S.C. § 1101(a)(48)(A).6

 8        This is a question of federal statutory interpretation.        We

 9   have previously observed that “[w]hether one has been ‘convicted’

10   within the language of [federal] statutes is necessarily . . . a

11   question of federal, not state, law, despite the fact that the

12   predicate offense and its punishment are defined by the law of

13   the State.”    United States v. Campbell, 167 F.3d 94, 97 (2d Cir.

14   1999) (alternations in original, citation omitted); cf. Dickerson

15   v. New Banner Inst., Inc., 460 U.S. 103, 119-20 (1983) (holding

16   that in “the absence of a plain indication to the contrary, . .

17   . it is to be assumed when Congress enacts a statute that it does




           6
               That provision defines “conviction” as
           [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. § 1101(a)(48)(A).

                                       -8-
 1   not intend to make its application dependent on state law”

 2   (alterations in original, citation omitted)).

 3        We review the BIA’s interpretation of the INA under the

 4   familiar two-step analysis set forth in Chevron, 467 U.S. 837.

 5   See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).               First,

 6   we determine whether the provision in question is ambiguous;

 7   “[i]f the intent of Congress is clear, that is the end of the

 8   matter; for the court, as well as the agency, must give effect to

 9   the unambiguously expressed intent of Congress.”                 Chevron, 467

10   U.S. at 842-43.    If, however, “the statute is silent or ambiguous

11   with respect to the specific issue, the question for the court is

12   whether     the   agency’s    answer    is     based    on   a    permissible

13   construction of the statute,” and thus entitled to deference.

14   Id. at 843.

15        Turning to the first step of this analysis, we conclude that

16   Congress’     intent   on    the   treatment    of     vacated    or   amended

17   convictions under 8 U.S.C. § 1101(a)(48)(A) is ambiguous.               Saleh

18   was deemed removable because, inter alia, he is an alien who “is

19   convicted of a crime involving moral turpitude,” 8 U.S.C. §

20   1227(a)(2)(A)(i), and conviction is defined, in pertinent part,

21   as “a formal judgment of guilt of the alien entered by a court,”

22   8 U.S.C. § 1101(a)(48)(A).          This language permits a spectrum of

23   possible interpretations.          On one end of the spectrum, Congress

24   may have intended that where an alien receives any type of post-


                                           -9-
 1   conviction relief -- either through an amendment nunc pro tunc,

 2   an expungement, or some other remedy -- the immigration law

 3   should treat the conviction as if it never occurred, regardless

 4   of the reason for the relief.             Under this view, the expungement

 5   means     that   the    defendant    no    longer      “is    convicted   of   [the

 6   original] crime” and there is no longer any “formal judgment of

 7   guilt of the alien entered by a court.”                On the other end of the

 8   spectrum, Congress may have intended that no post-conviction

 9   relief whatsoever should have any effect on whether an alien

10   stands “convicted” of a removable offense, again, regardless of

11   the reason for the relief.          Or, Congress may have intended some

12   middle position: that certain types of post-conviction relief

13   would affect an alien’s “conviction” status under the INA, but

14   others would not, depending upon the reason for the relief.

15   Neither the relevant statutory language nor legislative history

16   allows     us    to    conclude    that    any    of    these    interpretations

17   represents Congress’ unambiguous intent.                     See, e.g., Pinho v.

18   Gonzales, 432 F.3d 193, 206 (3d Cir. 2005); Murillo-Espinoza v.

19   INS, 261 F.3d 771, 774 (9th Cir. 2001).

20        Accordingly, we turn to Chevron’s second step, which directs

21   us   to    consider      whether     the    BIA     adopted      “a   permissible

22   construction of the statute.”              Chevron, 467 U.S. at 843.             In

23   making this assessment, “[i]t is not necessary that we conclude

24   that the agency’s interpretation of the statute is the only


                                           -10-
 1   permissible interpretation, nor that we believe it to be the best

 2   interpretation of the statute.” Skubel v. Fuoroli, 113 F.3d 330,

 3   336 (2d Cir. 1997) (citing Chevron, 467 U.S. at 843 n.11).

 4   Rather, to affirm the BIA’s determination, we need only conclude

 5   that the agency’s interpretation is “‘rational and consistent

 6   with the statute.’” Protection & Advocacy for Persons with

 7   Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119,

 8   124 (2d Cir. 2006) (quoting Sullivan v. Everhart, 494 U.S. 83, 89

 9   (1990)).

10        The      BIA       has   adopted    an    interpretation       of       8    U.S.C.    §

11   1101(a)(48)(A) that distinguishes between convictions vacated on

12   the merits, which the BIA does not treat as “convictions” within

13   the meaning of the provision, and convictions vacated for other

14   reasons, including to avoid immigration hardships, which the BIA

15   continues to treat as “convictions.”                  Because Saleh’s conviction

16   fell into the latter category, the BIA concluded that the nunc

17   pro tunc amendment did not affect his conviction status for

18   removability purposes.               For reasons to be discussed, we reject

19   Saleh’s contention that the interpretation is unreasonable.7

20        Over         the    last   20    years,    there    has   been      a       consistent

21   broadening of the meaning of “conviction” in the INA.                                 Until

22   1996,       the    INA    did   not     contain   a     statutory     definition           of

             7
             Although Saleh claims that the agency erred as a matter
      of law in reaching its decision, we will construe his argument
      as urging that the BIA’s interpretation was unreasonable.

                                                -11-
 1   “conviction,” and for most of that time, the BIA generally took

 2   the   position       that   an    alien       whose   conviction     is    vacated    or

 3   expunged under state law no longer stood convicted of a removable

 4   offense for federal immigration purposes.                       See Matter of Ozkok,

 5   19 I. & N. Dec. 546, 550-52 (BIA 1988).                           In 1988, the BIA

 6   acknowledged, albeit in a somewhat different context from the

 7   instant case, that its own prior approach was unduly deferential

 8   to state definitions of conviction and had thus frustrated

 9   congressional intent: “[F]orm has been placed over substance, and

10   aliens who are clearly guilty of criminal behavior and whom

11   Congress     intended       to    be    considered         ‘convicted’      have    been

12   permitted       to   escape      the        immigration     consequences        normally

13   attendant upon a conviction.”                 Id. at 551.       Accordingly, the BIA

14   attempted in Ozkok to remedy the problem, adopting a broader test

15   for     determining     whether         a    conviction     existed       for   federal

16   immigration purposes.

17         But Congress was of the opinion that the BIA had not gone

18   far enough.      See Francis v. Gonzales, 442 F.3d 131, 140 (2d Cir.

19   2006)     (noting      that      “Congress          subsequently     indicated       its

20   dissatisfaction with the Ozkok test when it amended the INA to

21   change    the    definition        of       conviction     in    1996”).        Congress

22   therefore codified, for the first time, a definition of the term

23   “conviction” in the INA.               See 8 U.S.C. § 1101(a)(48)(A) (1996);

24   see   also   Francis,       442    F.3d       at    140.     This    definition      was


                                                  -12-
 1   specifically intended to broaden the definition of “conviction”

 2   under the INA that had been previously used by the BIA.                        See

 3   Francis,     442     F.3d   at    139    (noting     that   “[t]he    applicable

 4   definition of ‘conviction’ was narrower [prior to Congress’

 5   intervention] than it is today”).                    In particular, Congress

 6   expanded the Ozkok definition by including convictions where the

 7   adjudication of guilt was deferred.             As the Conference Report on

 8   the amendments explained, “there exist[s] in the various states

 9   a   myriad    of    provisions     for    ameliorating      the   effects     of   a

10   conviction.        As a result, aliens who have clearly been guilty of

11   criminal behavior and whom Congress intended to be considered

12   “convicted” have escaped the immigration consequences normally

13   attendant upon a conviction.”              H.R. Conf. Rep. No. 104-828 at

14   224.

15          Interpreting the new definition, the BIA identified two

16   primary aims that it believed Congress sought to accomplish: to

17   focus the conviction inquiry on the “original determination of

18   guilt” and to “implement a uniform federal approach.”                  Matter of

19   Roldan, 22 I. & N. Dec. 512, 521-22 (BIA 1999).               Relying on these

20   rationales, the BIA, in a series of cases culminating in Matter

21   of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other

22   grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006),

23   further      expanded    the     definition     of    conviction     beyond    the

24   particular procedural mechanism considered by Congress in its


                                              -13-
 1   1996 amendments to the INA.          In Pickering, the BIA concluded

 2   that Congress objected generally to many state actions allowing

 3   aliens to “escape the immigration consequences normally attendant

 4   upon a conviction,” H.R. Conf. Rep. No. 104-828 at 224, and that

 5   Congress did not intend to allow an alien to escape those

 6   consequences by means of a state vacatur that was not on the

 7   merits.   Pickering gave effect to this objective by holding that

 8   the   federal    immigration    consequences   of    all   post-conviction

 9   relief will be determined by considering the State court’s

10   motivation in granting the relief, e.g., avoiding immigration

11   hardships,      recognizing    the   defendant’s    rehabilitation,   or   a

12   substantive or procedural defect in the predicate conviction.

13   Specifically, the BIA held that

14         [T]here is a significant distinction between convictions
15         vacated on the basis of a procedural or substantive
16         defect in the underlying proceedings and those vacated
17         because    of    post-conviction    events,    such   as
18         rehabilitation or immigration hardships.     Thus, if a
19         court with jurisdiction vacates a conviction based on a
20         defect in the underlying criminal proceedings, the
21         respondent no longer has a “conviction” within the
22         meaning   of   section   101(a)(48)(A)   [8   U.S.C.   §
23         1101(a)(48)(A)].     If, however, a court vacates a
24         conviction for reasons unrelated to the merits of the
25         underlying criminal proceedings, the respondent remains
26         “convicted” for immigration purposes.
27
28   Id. at 624.

29         Relying in part on this reasoning, the BIA in the appeal now

30   before us concluded that Saleh remained convicted of the original

31   removable offense because the amendment to Saleh’s judgment of


                                          -14-
 1   conviction was obtained solely to avoid “immigration hardships”

 2   and not to remedy a procedural or substantive defect in the

 3   underlying proceedings.

 4          The BIA’s interpretation in both Pickering and the instant

 5   case   is   reasonable.        For   one    thing,     the      interpretation       is

 6   entirely consistent with Congress’ intent in enacting the 1996

 7   amendments to broaden the definition of conviction and advances

 8   the two purposes earlier identified by the BIA: it focuses on the

 9   original attachment of guilt (which only a vacatur based on some

10   procedural or substantive defect would call into question) and

11   imposes     uniformity    on   the   enforcement           of   immigration       laws.

12   Second, from a practical perspective, while state convictions are

13   a useful way for the federal government to identify individuals

14   who, because of their criminal history, may be appropriate for

15   removal, there will still remain individuals who are guilty of

16   “morally turpitudinous” conduct, see Michel, 206 F.3d at 263, and

17   therefore suitable for removal even though they do not have a

18   still-standing conviction for a removable offense under state

19   law.      Cf.   Dickerson,     460   U.S.       at   120    (noting        that   state

20   convictions “provide a convenient, although somewhat inexact, way

21   of identifying ‘especially risky people’” and that “[t]here is no

22   inconsistency     in     the   refusal     of    Congress        to   be    bound    by

23   postconviction state actions . . . that vary widely from State to

24   State and that provide less than positive assurance that the


                                           -15-
 1   person in question no longer poses an unacceptable risk of

 2   dangerousness.” (internal citations omitted)).                  Under Pickering,

 3   these individuals will remain removable, as Congress intended.

 4        Particularly as applied to post-conviction relief granted to

 5   aid the defendant in avoiding immigration hardship, we think the

 6   BIA’s position eminently reasonable: When a conviction is amended

 7   nunc pro tunc solely to enable a defendant to avoid immigration

 8   consequences, in contrast to an amendment or vacatur on the

 9   merits, there is no reason to conclude that the alien is any less

10   suitable for removal.8

11        For   this     reason,    we    find    particularly       instructive       the

12   settled law of our sister circuits, which holds that the BIA has

13   reasonably   concluded        that   an     alien    remains    convicted    of     a

14   removable offense for federal immigration purposes when a state

15   vacates the predicate a conviction pursuant to a rehabilitative

16   statute.     See,    e.g.,     Pickering,      465    F.3d     at   266;   Alim    v.

17   Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006); Pinho, 432


           8
             We note that we have already embraced, in a slightly
      different context, approximately the BIA’s standard in
      Pickering. In Campbell, we held that the district court could
      apply a sentencing enhancement called for by federal law for a
      vacated    state   aggravated    felony   conviction    because
      “[defendant’s] 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.”
      167 F.3d at 98. Although Campbell is not controlling in this
      case, we continue to believe that this standard, which the BIA
      has substantially adopted and applied to the removal context in
      Pickering, is consistent with congressional intent.

                                           -16-
 1   F.3d at 195; Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir.

 2   2005);   Cruz-Garza,   396    F.3d   at   1129;   Resendiz-Alcaraz   v.

 3   Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-

 4   Espinoza, 261 F.3d at 774; Herrera-Inirio v. INS, 208 F.3d 299,

 5   305 (1st Cir. 2000).     Saleh attempts to distinguish away this

 6   body of law by arguing that his vacatur, by contrast, had

 7   absolutely nothing to do with rehabilitation.            We agree, of

 8   course, but his argument proves too much.         It would make little

 9   sense for federal law to ignore vacaturs for rehabilitation,

10   which, at least in some cases, reflect a measured judgment that

11   the defendant is rehabilitated, but recognize vacaturs that

12   solely aim to help the defendant avoid adverse immigration

13   consequences.

14        In light of the foregoing, we join our sister circuits in

15   holding that the BIA’s conclusion -- that an alien remains

16   convicted of a removable offense for federal immigration purposes

17   when the predicate conviction is vacated simply to aid the alien

18   in avoiding adverse immigration consequences and not because of

19   any procedural or substantive defect in the original conviction

20   -- is a permissible construction of the statute and is therefore

21   entitled to deference.       See, e.g., Sanusi v. Gonzales, 474 F.3d

22   341, 342-43 (6th Cir. 2007) (“We deny the petitions for review on

23   the ground that the state court’s vacation of Sanusi’s conviction

24   was ineffective for immigration purposes because it was done


                                       -17-
 1   solely       for    the    purpose    of   ameliorating       the    immigration

 2   consequences to petitioner.”) (citing Zaitona v. INS, 9 F.3d 432

 3   (6th Cir. 1993); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir.

 4   2005).9

 5                 2.     Does the BIA’s construction of 8 U.S.C. §
 6                        1101(a)(48)(A) violate the full faith and credit
 7                        statute?
 8
 9        We      turn    now    to   Saleh’s   additional   argument       that   the

10   interpretation        the    BIA     adopted,   and   which     we   here     deem

11   reasonable, violates the statutory analogue of the full faith and

12   credit clause.        See 28 U.S.C. § 1738 (federal courts must give

13   full faith and credit to state acts, records, and judicial

14   proceedings); cf. U.S. Const. art. IV, § 1.               We agree with the

15   First Circuit that “section 1101(a)(48)(A) does not infract

16   applicable principles of full faith and credit,” Herrera-Inirio,

17   208 F.3d at 307, because “neither the constitutional clause nor

18   its statutory analogue (binding federal courts) purports to

19   prevent federal legislative authorities from writing federal

20   statutes that differ from state statutes or from attaching, to

21   words in a federal statute, a meaning that differs from the

22   meaning attached to the same word when used in a statute enacted




              9
             We note that our holding in this case is limited to post-
      conviction relief granted solely to avoid adverse immigration
      consequences and not because of any procedural or substantive
      defect in the original conviction, and we leave for another day
      the effect of post-conviction relief granted for other reasons.

                                             -18-
 1   by a state,” Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992)

 2   (Breyer, J.).

 3        Similarly, we have held that the full faith and credit

 4   statute does not prevent a federal court from taking cognizance

 5   of a state youthful offender adjudication as a prior conviction

 6   in sentencing even though the adjudication is not regarded as a

 7   conviction under state law:

 8        [T]he “principles of federalism and comity embodied in
 9        the full faith and credit statute,” Growe v. Emison, 507
10        U.S. 25, 35, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), are
11        not endangered when a sentencing court, not questioning
12        the propriety of the state’s determination in any way,
13        interprets how to apply New York’s youthful offender
14        adjudications to a Guidelines analysis. . . . The
15        federal sentencing court is neither refusing to
16        recognize nor relitigating the validity of [defendant’s]
17        New York state judgment of conviction or his youthful
18        offender sentence. Instead, it is merely noticing and
19        acting upon the fact of [defendant’s] prior conviction.”
20
21   United    States   v.   Jones,   415   F.3d   256,   265   (2d   Cir.   2005)

22   (internal citations omitted).           Here, too, the BIA is simply

23   interpreting how to apply Saleh’s vacated State conviction for

24   receiving stolen property to the INA and is not refusing to

25   recognize or relitigating the validity of Saleh’s California

26   state conviction.        The full faith and credit statute is not

27   thereby violated.

28        B.     Did the BIA properly deny Saleh’s application for
29               cancellation of removal?
30
31        Finally, the BIA did not err in affirming the IJ’s denial of

32   Saleh’s application for cancellation of removal. The application


                                        -19-
 1   was untimely.    In any event, Saleh was ineligible for the relief

 2   because he does not satisfy the provision’s seven-year continuous

 3   residence requirement, 8 U.S.C. § 1229b(a)(2). His conviction of

 4   a removable offense (which, for the above reasons, stands for

 5   federal immigration purposes) triggers the “stop-time rule,” 8

 6   U.S.C. § 1229b(d)(1), under which an alien’s continuous residency

 7   or physical     presence ends, for purposes of cancellation of

 8   removal, on the date he commits a qualifying offense or on the

 9   date a notice to appear is filed. Accordingly, Saleh’s period of

10   continuous residence ended, at the very latest, in 1993, after

11   only three years in the country.         See generally Tablie v.

12   Gonzales, 471 F.3d 60, 61-62 (2d Cir. 2006).10

13                             III. CONCLUSION

14        We have considered all of Saleh’s arguments on appeal and

15   find them to be without merit.      For the foregoing reasons, we

16   deny Saleh’s petition for review.     The pending motion for a stay

17   of removal in this case is denied as moot.




           10
             After the filing of this opinion, it was brought to the
      Court’s attention that the “stop-time” rule may not apply
      retroactively to offenses committed before April 1, 1997, the
      effective date of the Illegal Immigrant and Immigrant
      Responsibility Act of 1996.     That issue is presently before
      another panel of this Court but was never presented here by
      Saleh. Accordingly, we deem Saleh to have waived that argument.
      See Yueqing Zhang, 426 F.3d at 542 n.1. Nothing in this opinion
      should be construed as deciding whether the “stop-time” rule
      applies retroactively.

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