            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                  wrangled for over a decade. Now that they
  Judges, and FITZWATER,* District Judge.            finally have reached this court, their case
                                                     provides yet another opportunity to interpret
JERRY E. SMITH, Circuit Judge:                       the Illegal Immigration Reform and Immigrant
                                                     Responsibility Act of 1996 (“IIRIRA”), Pub.
   The Immigration and Naturalization Service        L. No. 104-208, 110 Stat. 3009-546 (1996).1
(“INS”) and Ricardo Renteria-Gonzalez have

                                                        1
                                                          We cite this statute using the abbreviation
   *
    District Judge of the Northern District of       “IIRIRA” followed by the section number from the
Texas, sitting by designation.                                                (continued...)
In particular, the case presents a complicated            States on the occasion when he transported
interpretive question involving the definition,           the illegal aliens. The INS presumably used
criminal alien removal, and jurisdictional                this allegation to avoid the JRAD on the trans-
sections of IIRIRA.                                       porting conviction. Yet, the INS had not ter-
                                                          minated Renteria-Gonzalez’s temporary resi-
   Although Renteria-Gonzalez has an “ag-                 dent status either when he entered the United
gravated felony” conviction under the IIRIRA              States with the illegal aliens or when the
definition, his conviction did not qualify as an          agency issued the order to show cause.
“aggravated felony” under pre-IIRIRA immi-
gration law. IIRIRA therefore does not de-                   Thus, the INS voluntarily dismissed the
prive this court of jurisdiction over the petition        order to show cause in August 1991. But in
for review. Exercising that jurisdiction, we              September 1991, the agency sent Renteria-
deny the petition for review under the sub-               Gonzalez a notice of intent to terminate his
stantial evidence standard.                               temporary resident status, then terminated his
                                                          status in November 1991.
                       I.
   Renteria-Gonzalez, a citizen of Mexico, ob-                Renteria-Gonzalez sought two avenues of
tained temporary resident status in the United            relief from the attempts to deport him. First,
States in 1987. In 1989, he pleaded guilty of             he appealed the termination of his temporary
transporting illegal aliens within the United             resident status to the INS’s Legalization
States in violation of 8 U.S.C. § 1324(a)(1)              Appeals Unit (“LAU”), which affirmed the
and 18 U.S.C. § 2. The district court sen-                termination of his temporary resident status in
tenced him to six months’ confinement and                 July 1992. Second, he petitioned the district
three years’ supervised release. The court also           court to vacate his conviction.
issued a “judicial recommendation against de-
portation” (“JRAD”) under 8 U.S.C. § 1251-                   In February 1992, a magistrate judge
(b) (1988) (repealed by the Immigration Act of            recommended that the district court vacate
1990, Pub. L. No. 101-649, § 505, 104 Stat.               Renteria-Gonzalez’s conviction under the All
4978, 5050 (1990)).2                                      Writs Act, 28 U.S.C. § 1651. The district
                                                          court adopted the recommendation and vacat-
    Notwithstanding the JRAD, the INS began               ed his conviction in October 1992 (the “Order
deportation proceedings in August 1990 by is-             to Vacate”). The government immediately
suing an order to show cause based on Ren-                moved the court to reconsider the Order to
teria-Gonzalez’s unlawful entry into the United           Vacate, but the court denied the motion. The
                                                          government did not appeal the Order to
                                                          Vacate.
(...continued)
                                                             The INS began deportation proceedings
statute.
                                                          anew in January 1994 by issuing another order
   2
     Although styled a “recommendation,” a JRAD           to show cause, this time basing the order not
was “binding on the Attorney General.” United             only on Renteria-Gonzalez’s alleged unlawful
States v. Castro, 26 F.3d 557, 560 (5th Cir. 1994)        entry and presence, but also on his alien
(citing Janvier v. United States, 793 F.2d 449, 452
(2d Cir. 1986)).

                                                      2
smuggling activities.3 The immigration judge               Renteria-Gonzalez petitions for review of the
(“IJ”) held extensive hearings on the order at             BIA’s decision.
which Renteria-Gonzalez, INS Border Patrol
Agent Lane Horger, and Antonio Bautista-                                         II.
Garcia, Renteria-Gonzalez’s accomplice, tes-                  IIRIRA is a difficult statute. It consumes
tified.                                                    over a quarter of a 750-page omnibus law. It
                                                           amends the Immigration and Nationality Act
    The IJ’s decision ultimately turned on one             (“INA”) in dozens of important but technical
factual dispute: Horger testified that the illegal         ways. Most importantly for this case, IIRIRA
aliens had told him that Renteria-Gonzalez and             dramatically restricts judicial review of final
Bautista-Garcia had picked them up in Mexico               orders of removal.
for $150 to $250 per alien, whereas Renteria-
Gonzalez and Bautista-Garcia testified that                    Because IIRIRA is complicated, and its jur-
they picked up the illegal aliens at a rest stop           isdictional sections especially so, we first ex-
in the United States without knowledge of                  amine the relevant sections and the INS’s
their alien status. Based on internal in-                  seemingly well-crafted argument against juris-
consistencies in the testimony of Renteria-                diction. We then explain why Renteria-
Gonzalez and Bautista-Garcia and other                     Gonzalez’s conviction of transporting illegal
circumstantial evidence, the IJ credited                   aliens within the United States was not an
Horger’s testimony and held that Renteria-                 “aggravated felony” conviction under pre-
Gonzalez was deportable.                                   IIRIRA immigration law that, in the case of an
                                                           “aggravated felony,” would strip this court of
   Renteria-Gonzalez timely appealed to the                jurisdiction to review a petition for review.
Board of Immigration Appeals (“BIA”),
arguing that he had not received a fair hearing                                  A.
because the INS had made no effort to obtain                  IIRIRA has a transitional rule and a
the presence of the illegal aliens he                      permanent rule for judicial review of a final
transported, and the IJ had not let him test               order of removal. The transitional rule
Horger’s knowledge of Spanish on cross-                    appears only in IIRIRA § 309(c)(4)(G), not in
examination. Renteria-Gonzalez also argued                 the United States Code. The permanent rule
that the IJ and BIA lacked jurisdiction because            appears as 8 U.S.C. § 1252(a)(2)(C). The
the INS had not properly terminated his                    transitional and permanent rules are nearly
temporary resident status before instituting               identical. The transitional rule states that
deportation proceedings. After an inexplicable
delay of nearly seven years, the BIA in April                 there shall be no appeal permitted in the
2001 finally dismissed Renteria-Gonzalez’s                    case of an alien who is inadmissible or
appeal and approved a final order of removal.                 deportable by reason of having
                                                              committed a criminal offense covered in
                                                              section 212(a)(2) or section
   3
     Under pre-IIRIRA law, these two grounds for              241(a)(2)(A)(iii), (B), (C), or (D) of the
deportation appeared at 8 U.S.C. § 1251(a)(1)(B),             Immigration and Nationality Act (as in
(E)(i) (1994). IIRIRA re-codified these grounds               effect as of the date of the enactment of
for deportation at 8 U.S.C. § 1227(a)(1)(B), (E)(i).          this Act), or any offense covered by
See IIRIRA § 305(a)(2).

                                                       3
   section 241(a)(2)(A)(ii) of such Act (as               Furthermore, the transitional rule (again,
   in effect on such date) for which both             like the permanent rule) applies to a petition
   predicate offenses are, without regard to          for review, even if the basis for the final order
   their date of commission, otherwise                of removal is not the jurisdiction-stripping
   covered by section 241(a)(2)(A)(i) of              criminal offense. The transitional rule applies
   such Act (as so in effect).                        to aliens “deportable by reason of having com-
                                                      mitted” an aggravated felony. This language
IIRIRA § 309(c)(4)(G).                                does not require that the alien in fact be
                                                      deported for having committed an aggravated
   Aside from syntactical differences, the per-       felony, but only that he could be deported, i.e.,
manent rule is identical, except that it omits        is deportable, by reason of having committed
the three parentheticals. See 8 U.S.C. § 1252-        an aggravated felony.         “What the INS
(a)(2)(C). As we explain, infra part II.B.2,          originally charged is of no consequence; so
these parentheticals make all the difference in       long as the alien in fact is removable for
this case.                                            committing an aggravated felony, this court
                                                      has no jurisdiction, irrespective of whether the
    The transitional rule governs Renteria-Gon-       INS originally sought removal for that
zalez’s case. It applies to any alien “whose          reason.” Lopez-Elias v. Reno, 209 F.3d 788,
deportation proceedings commence before               793 (5th Cir. 2000), cert. denied, 531 U.S.
IIRIRA’s general effective date of April 1,           1069 (2001).
1997, and conclude more than thirty days after
its passage on September 30, 1996.” Lerma                Thus, it is irrelevant that the INS did not
de Garcia v. INS, 141 F.3d 215, 216 (5th Cir.         charge Renteria-Gonzalez with commission of
1998); IIRIRA § 309(c)(1), (4). Renteria-             an aggravated felony, but instead with
Gonzalez’s proceedings began in January 1994          unlawful entry and presence and his alien
and concluded in April 2001.                          smuggling activities.4 The transitional rule
                                                      applies regardless.
   The transitional rule (like the permanent
rule) withdraws jurisdiction from the federal             Based on these sections of the post-IIRIRA
courts to review a final order of removal             INA, the INS makes an elegantly logical ar-
against an alien who is removable by reason of        gument against jurisdiction.          Renteria-
having committed one of several criminal of-          Gonzalez was convicted of transporting illegal
fenses, one of which is an “aggravated felony.”       aliens under § 1324(a).          A § 1324(a)
8 U.S.C. § 1227(a)(2)(A)(iii) (cross referenced       conviction is an “aggravated felony” under
in IIRIRA § 309(c)(4)(G)). The INA now                IIRIRA. An aggravated felony is a deportable
defines (but once did not) the term                   criminal offense under § 1227(a)(2)(A)(iii),
“aggravated felony,” and in great detail. 8           and IIRIRA § 309(c)(4)(G) withdraws
U.S.C. § 1101(a)(43). Among the crimes                jurisdiction to review a final order of removal
included is transporting an illegal alien in
violation of § 1324(a)(1)(A) or (2), the crime
of which Renteria-Gonzalez pleaded guilty. 8             4
                                                           Section 1227(a)(1)(E)(i) covers conduct simi-
U.S.C. § 1101(a)(43)(N); Ruiz-Romero v.               lar to that encompassed by § 1324(a) but does not
Reno, 205 F.3d 837 (5th Cir. 2000).                   requires a criminal conviction before an alien may
                                                      be deported for alien smuggling.

                                                  4
against an alien deportable “by reason of                conviction. First, it lacked statutory authority.
having committed” an aggravated felony.                  As the magistrate judge’s report and
Q.E.D., the INS argues, IIRIRA                           recommendation indicates, the court vacated
§ 309(c)(4)(G) bars judicial review in this              Renteria-Gonzalez’s conviction solely because
case.                                                    of the 1990 JRAD and the perceived inequity
                                                         of deporting him. The Immigration Act of
                       B.                                1990, however, rescinded all JRAD’s, whether
   Renteria-Gonzalez responds to the INS’s               issued “before, on, or after” November 29,
argument with two contentions. First, he rea-            1990. Pub. L. No. 101-649, § 505, 104 Stat.
sons that he no longer has a conviction,                 4978, 5050 (1990).
because the district court vacated his
conviction in 1992. Second, he argues that his              Thus, Renteria-Gonzalez’s JRAD was no
conviction of transporting illegal aliens, even if       longer effective in 1992 when the court relied
it remains valid, did not qualify as an                  on it to vacate his conviction. Yet, the court
“aggravated felony” under pre-IIRIRA                     did not even consider the retroactive effect of
immigration law and thus is not a jurisdiction-          § 505.5 In other words, the court had no stat-
stripping offense under IIRIRA §                         utory ground whatsoever to vacate the
309(c)(4)(G). Renteria-Gonzalez errs in                  conviction.
saying that his conviction is vacated for
purposes o f the immigration laws, but he is                 Second, the district court lacked equitable
correct that his conviction did not qualify as an        authority to vacate the conviction. “[N]o ade-
“aggravated felony” under pre-IIRIRA im-                 quate statutory or historical warrant” authoriz-
migration law.                                           es the federal courts to add new equitable rem-
                                                         edies to the federal post-conviction remedial
                       1.                                scheme. United States v. Reyes, 945 F.2d 862,
   Renteria-Gonzalez contends that he no                 866 (5th Cir. 1991). This principle applies
longer has a conviction, because the district            with special force to the immigration laws.
court vacated his conviction in 1992. The INS            When a court vacates an otherwise final and
responds t hat the Order to Vacate is null for           valid conviction on equitable grounds merely
lack of subject matter jurisdiction or, in the al-       to avoid the immigration-law consequences of
ternative, that a properly vacated federal con-          the conviction, it usurps Congress’s plenary
viction remains valid for purposes of the im-            power to set the terms and conditions of
migration laws, even if a district court has pur-        American citizenship and the executive’s dis-
ported to vacate the conviction to avoid the
immigration-related consequences of the con-
viction. We conclude that, though the INS                   5
                                                              Every circuit to address the question has held
may not now collaterally attack the Order to
                                                         that § 505 retroactively rescinded all JRAD’s and
Vacate, the vacated conviction remains valid             did not thereby violate the Ex Post Facto Clause.
for purposes of the immigration laws.                    See United States v. Yacoubian, 24 F.3d 1 (9th
                                                         Cir. 1994); United States v. Koziel, 954 F.2d 831
                       a.                                (2d Cir. 1992); United States v. Bodre, 948 F.2d
   The district court committed several errors           28 (1st Cir. 1991). We had not addressed this
of law when it vacated Renteria-Gonzalez’s               question when the district court vacated Renteria-
                                                         Gonzalez’s conviction, and still have not.

                                                     5
cretion to administer the immigration laws.             2002).6
Plyler v. Doe, 457 U.S. 202, 225 (1992);
Reyes, 945 F.2d at 866.                                    Notwithstanding these many errors, how-
                                                        ever, the INS cannot collaterally attack the
   A purely equitable order to vacate a                 Order to Vacate, even for want of jurisdiction,
conviction also encroaches on the President’s           because it did not directly appeal that order in
power and discretion to pardon. Reyes, 945              1992SSan appeal in which it likely would have
F.2d at 866. “Absent a clearer statutory or             been successful.7 We therefore must treat the
historical basis, an article III court should not       Order to Vacate as proper in every respect, so
arrogate such power unto itself.”             Id.       we turn to INS’s alternative argument, i.e.,
Although the court fashioned its Order to               that a vacated federal conviction remains valid
Vacate a “Writ for Relief from Judgment”                for purposes of the immigration laws.
under the All Writs Act, 28 U.S.C. § 1651,
and Reyes involved a petition for a writ of                                   b.
audita querela, we have extended Reyes to a                Even if, arguendo, the Order to Vacate was
petition for relief from judgment under the All         proper, Renteria-Gonzalez’s conviction
Writs Act. United States v. Banda, 1 F.3d               remains valid for purposes of the immigration
354, 356 (5th Cir. 1993).                               laws. The INA defines “conviction” as

   Third, and most seriously, the district court           with respect to an alien, a formal
probably lacked subject matter jurisdiction to             judgment of guilt of the alien entered by
vacate Renteria-Gonzalez’s conviction. The                 a court or, if adjudication has been
magistrate judge’s report does not address the             withheld, where—
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                  6
                                                             The Second Circuit has held that a district
Vacate under the All Writs Act, which allows            court does not retain jurisdiction to enforce a void
the federal courts to “issue all writs necessary        JRAD after the Immigration Act of 1990. United
or appropriate in aid of their respective               States v. Tablie, 166 F.3d 505, 506-07 (2d Cir.
jurisdictions,” 28 U.S.C. § 1651.                       1999). But see United States v. Yacoubian, 24
                                                        F.3d 1, 5-6 (9th Cir. 1994) (holding that district
    The district court apparently thought that          court retained jurisdiction).
the Order to Vacate was necessary to enforce               7
its earlier JRAD. After the Immigration Act of               See Chicot County Drainage Dist. v. Baxter
1990, however, this rationale no longer could           State Bank, 308 U.S. 371, 377 (1940) (holding that
                                                        a “decree sustaining [subject matter] jurisdiction
supply a jurisdictional hook, because the
                                                        against attack, while open to direct review, is res
JRAD was void. Moreover, the All Writs Act              judicata in a collateral action”); Royal Ins. Co. of
does not confer an independent basis for sub-           Am. v. Quinn-L Capital Corp., 960 F.2d 1286,
ject matter jurisdiction. United States v. N.Y.         1293 (5th Cir. 1992) (“If the parties against whom
Tel. Co., 434 U.S. 159, 172 (1977); Newby v.            judgment was rendered did not appeal, the
Enron Corp., 302 F.3d 295, 300 (5th Cir.                judgment becomes final and the court’s subject
                                                        matter jurisdiction is insulated from collateral
                                                        attack.”).

                                                    6
   (i) a judge or jury has found the alien                    The most remarkable thing about how the
   guilty or the alien has entered a plea of              INA defines “conviction” is that it defines it at
   guilty or nolo contendere or has                       all. “Conviction” is a commonly used word
   admitted sufficient facts to warrant a                 among lawyers and laymen. The INA would
   finding of guilt, and                                  have been perfectly comprehensible without a
                                                          definition of “conviction,” or at least no more
   (ii) the judge has ordered some form of                ambiguous than with such a definition. And,
   punishment, penalty, or restraint on the               indeed, the INA did not define “conviction”
   alien’s liberty to be imposed.                         until the enactment of IIRIRA. 9 By adding
                                                          this definition, Congress must have intended it
8 U.S.C. § 1101(a)(48)(A).                                to displace any intuitive, popular, or common-
                                                          sense understanding.”
    No court has addressed the precise question
posed by this case, i.e., whether a vacated fed-             Section 1101(a)(48)(A) notably omits any
eral conviction remains valid under § 1101(a)-            exception for vacated convictions.10          If
(48)(A) as a deportable offense and thus as a             Congress had not wanted vacated convictions
bar to judicial review under the jurisdictional           to remain valid for the purpose of the
sections of IIRIRA. Although it may seem                  immigration laws, it easily could have included
counterintuitive, the text, structure and history         an exception for vacated convictions in the
of the INA suggest that a vacated federal con-            statutory definition. The problem of vacated
viction does remain valid for purposes of the             convictions occurred frequently enough that
immigration laws. Moreover, several circuits,             Congress must have anticipated the problem,
including this court, have held that a vacated            yet it chose to remain silent. This lack of an
state conviction remains valid under § 1101-              exception for vacated convictions in
(a)(48)(A)8; their persuasive reasoning applies           § 1101(a)(48)(A) strongly implies that
with equal force to a vacated federal                     Congress did not intend any such exception.
conviction.
                                                             Moreover, the INA proves that Congress
                                                          knew how to write exceptions for certain kinds
                                                          of post-conviction relief. Section 1227(a)(2)
   8
     According to the BIA’s interpretation, vacated       defines classes of aliens deportable because of
state convictions remain valid under § 1101-              certain criminal offenses. As explained supra
(a)(48)(A). In re Roldan-Santoyo, 22 I. & N. Dec.         part II.A, an alien deportable for these offenses
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,             9
                                                                Moosa, 171 F.3d at 1008 (“Again, it is
we are not required to give Chevron deference to          important to note that, prior to the enactment of
the agency’s interpretation in Roldan-Santoyo.            IIRIRA § 322(a) [8 U.S.C. § 1101(a)(48)(A)],
But even if the two questions are similar enough to       there was no definition of “conviction” in the im-
come within the Chevron framework, we have held           migration laws.”).
that § 1101(a)(48)(A) plainly speaks to the precise
                                                             10
question of a vacated state conviction, and                    See United States v. Campbell, 167 F.3d 94,
therefore the Chevron analysis stops at step one.         98 (2d Cir. 1999) (“[N]o provision excepts from
Moosa v. INS, 171 F.3d 994, 1010 n.9 (5th Cir.            this definition a conviction that has been va-
1999).                                                    cated.”).

                                                      7
may not obtain judicial review under either the          contemporaneously with the punishment, a
transitional or the permanent rule. Section              judgment of guilt could be entered without
1227(a)(2)(A)(v), however, states that                   further proceedings relating to guilt if the alien
convictions for some of these offenses are not           violated his probation or other court order. Id.
grounds for deportation if the convicted alien           at 551-52.
receives “a full and unconditional pardon by                 “This effort failed to produce the desired
the President of the United States or by the             uniformity and Congress stepped in to fill the
Governor of any of the several States.” Just as          void.” Herrera-Inirio, 208 F.3d at 306. Con-
a pardoned conviction for these offenses is not          sequently, § 1101(a)(48)(A) expanded the Oz-
grounds for deportation, it also is not a                kok test by adding the first half of the
jurisdiction-stripping offense under either the          definition (“formal judgment of guilt of the
transitional or the permanent rule. Section              alien entered by a court”) and by omitting the
1227(a)(2)(A)(v) thus creates an exception to            third part of the Ozkok test in the second half
the definition of “conviction” in §                      of the definition.       Moreover, Congress
1101(a)(48)(A) for certain pardoned                      “deliberately broaden[ed] the scope of the
convictions.                                             definition of ‘conviction’ beyond that adopted
                                                         by the Board . . . in Matter of Ozkok.” H.R.
    Congress therefore knew how to create ex-            CONF. REP. NO. 104-828, at 224 (1996)
ceptions to § 1101(a)(48)(A). That it included           (quoted in Moosa, 171 F.3d at 1002). In
no exception for judicially vacated convictions          Moosa, we held that Congress meant what it
likely indicates that it merely wanted to restrict       said in the plain text of
to only the most directly accountable officers           section 1101(a)(48)(A): “Congress was well
the power to negate a conviction and thereby             aware of the varying interpretations of
block deportation.                                       ‘conviction,’ but chose to enact the current
                                                         definition.” 171 F.3d at 1008.
    The state of the law before Congress adopt-
ed § 1101(a)(48)(A) in 1996 further shows                   This analysis suggests that a vacated
that it specifically intended a vacated                  conviction, federal or state, remains valid for
conviction to remain valid for the purpose of            purposes of the immigration laws, and five
the immigration laws. The BIA had struggled              circuits, including this court, have concluded
with the meaning of “conviction” for years.              that a vacated or otherwise expunged state
Murillo-Espinoza v. INS, 261 F.3d 771, 774               conviction remains valid under § 1101(a)-
(9th Cir. 2001). “Frustrated by the crazy quilt          (48)(A).11 Although no court has addressed
of anomalous results that flowed from widely
disparate state rehabilitative and diversionary
arrangements,” Herrera-Inirio v. INS, 208                   11
                                                               See, e.g., Herrera-Inirio, 208 F.3d at 304-06
F.3d 299, 305 (1st Cir. 2000), the BIA finally
                                                         (First Circuit) (state delayed adjudication of guilt);
adopted a three-part definition of “conviction”          Campbell, 167 F.3d at 96-98 (Second Circuit)
in In re Ozkok, 19 I. & N. Dec. 546 (B.I.A.              (federal sentencing case); Nwandu v. Crocetti, 8
1998). The Ozkok test for a “conviction” re-             Fed. Appx. 162, 167 n.8 (4th Cir. 2001) (foreign
quired that (1) an alien plead or be found guil-         conviction vacated) (dictum); Moosa, 171 F.3d at
ty, (2) a judge order some kind of restraint or          999-1003, 1005-10 (Fifth Circuit) (state delayed
punishment, and, (3) if not entered                      adjudication of guilt); Murillo-Espinoza, 261 F.3d
                                                                                                (continued...)

                                                     8
the closely related question whether a vacated          “aggravated felony” conviction that bars
federal conviction remains valid under § 1101-          judicial review. We decide that the conviction
(a)(48)(A), we see no good reason that this             does not qualify as an “aggravated felony”
textual, structural, and historical analysis from       under the INA “as in effect as of the date of
the state conviction cases should not apply             the enactment of” IIRIRA, so IIRIRA
with equal force to a vacated federal                   § 309(c)(4)(G) does not deprive us of
conviction.                                             jurisdiction.

    Furthermore, the policies behind these cas-             The INS’s argument presupposes that Ren-
esSSuniformity of federal law and consistency           teria-Gonzalez’s conviction for illegally
in enforcement of the immigration lawsSSex-             transporting aliens is an “aggravated felony.”
tend to a vacated federal conviction, as well.          The INS, however, has confused the IIRIRA
If the meaning of “conviction” depended on              definition of “aggravated felony” with the pre-
state penal law, § 1101(a)(48)(A) could never           IIRIRA definition(s).
obtain a uniform interpretation, and aliens
convicted of identical crimes would face dif-               The INS doubtless is correct that a
ferent immigration consequences based on the            conviction for transporting illegal aliens is,
fortuity of the state in which they committed           literally by definition, an “aggravated felony”
their crimes. The unbridled discretion of fed-          under IIRIRA. 8 U.S.C. § 1101(a)(43)(N);
eral judges would lead to these same vices as           Ruiz-Romero, 205 F.3d at 840. Moreover,
surely as would the vagaries of state law.              IIRIRA makes this new definition retroactive
                                                        “regardless of when the conviction occurred.”
    If anyone is to have this kind of discretion        IIRIRA § 321(c). Thus, if Renteria-Gonzalez
in the enforcement of the immigration laws, it          had been convicted after IIRIRA became ef-
should be the executive branch, which “must             fective, his conviction alone would be grounds
exercise especially sensitive political functions       for deportation. 8 U.S.C. § 1227(a)(2)(A)(iii).
that implicate foreign relations.” INS v.               Likewise, if the INS had begun deportation
Abudu, 485 U.S. 94, 110 (1988). We                      proceedings against him after IIRIRA took ef-
conclude, therefore, that the Order to Vacate           fect, his conviction for transporting illegal ali-
does not affect Renteria-Gonzalez’s conviction          ens would be a jurisdiction-stripping offense
for the purpose of the immigration laws, so the         under the permanent rule, which uses the
conviction remains valid under § 1101(a)-               IIRIRA definition of “aggravated felony” and
(48)(A).                                                applies retroactively to pre-IIRIRA
                                                        convictions. 8 U.S.C. § 1252(a)(2)(C);
                       2.                               IIRIRA § 306(b).12
   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                        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-
   11
     (...continued)                                     tion of transporting illegal aliens but whose de-
at 773-74 (Ninth Circuit) (state conviction va-         portation proceedings did not begin until after
cated).                                                 IIRIRA became effective.

                                                    9
   Nonetheless, the transitional rule governs            “aggravated felony,” we have appellate
the INS’s proceedings against Renteria-                  jurisdiction, and IIRIRA § 309(c)(4)(G) does
Gonzalez, and that rule does not use the new,            not bar judicial review of Renteria-Gonzalez’s
post-IIRIRA definition of “aggravated felony.”           petition on the merits,14 to which we now turn.
As mentioned supra part II.A, the transitional
rules and the permanent rules differ in only one
material respect, but that difference tips the           (...continued)
balance in this case. IIRIRA § 309(c)(4)(G)              Effective Death Penalty Act of 1996 (“AEDPA”),
withdraws jurisdiction over a final order of             Pub. L. No. 104-132, 110 Stat. 1214 (1996).
removal against an alien who is deportable by            Under AEDPA, the definition of “aggravated fel-
                                                         ony” included a § 1324(a) conviction for which the
reason of having committed an “aggravated
                                                         term of imprisonment imposed was at least
felony” under the INA “as in effect as of the            five years. AEDPA § 440(e)(3). AEDPA further
date of the enactment of [IIRIRA].” We                   made this definition retroactive as if it had been
therefore must apply the definition of “ag-              included in § 222 of the Immigration and Nation-
gravated felony” in effect on September 30,              ality Technical Corrections Act of 1994, Pub. L.
1996, to determine whether IIRIRA § 309(c)-              No. 103-416, § 222, 108 Stat. 4305, 4320 (1994)
(4)(G) withdraws our jurisdiction in this case.          (“INTCA”). AEDPA § 440(f). The INTCA
                                                         amendments applied only to convictions “entered
   Congress has amended the definition of                on or after the date of enactment of [INTCA].”
“aggravated felony” in the INA four times                INTCA § 222(b). Thus, the older definition of
since Renteria-Gonzalez’s conviction. Unlike             “aggravated felony” still governed Renteria-Gon-
IIRIRA, however, most of these amendments                zalez’s conviction, notwithstanding the INTCA,
were not retroactive.           Instead, each            AEDPA, and IIRIRA amendments.
amendment applied only to convictions
                                                            Even if the AEDPA amendments controlled
adjudged on or after the date of that respective
                                                         under IIRIRA § 309(c)(4)(G), however, our con-
amendment, so superseded definitions still               clusion would be no different. AEDPA included a
govern past convictions. Thus, we look to the            § 1324(a) conviction in the definition of “ag-
codified definition of “aggravated felony” at            gravated felony” only if the alien received a sen-
the time of Renteria-Gonzalez’s conviction.              tence of imprisonment of at least five years,
                                                         AEDPA § 440(e)(3), but Renteria-Gonzalez re-
   The definition of “aggravated felony” in              ceived a six-month sentence.
October 1989 included only murder, drug traf-
                                                            14
ficking, weapons trafficking, or an attempt to                 In general, IIRIRA dramatically restricts ju-
commit these crimes. 8 U.S.C. § 1101(a)(43)              dicial review of final orders of removal. As we
(1988). Thus, Renteria-Gonzalez’s § 1324(a)              observed in Nguyen v. INS, 117 F.3d 206, 207 (5th
conviction for transporting illegal aliens did           Cir. 1997), IIRIRA § 309(c)(4)(G) “completely
                                                         forecloses our jurisdiction to review decisions of
not qualify as an “aggravated felony” under the
                                                         the [BIA].” Our decision today does not challenge
INA “as in effect as of the date of the en-
                                                         or alter our holding in Nguyen; we conclude only
actment of [IIRIRA].”13 Without a qualifying             that Renteria-Gonzalez has not committed a
                                                         jurisdiction-stripping offense under IIRIRA § 309-
                                                         (c)(4)(G).
   13
     On September 30, 1996, Congress had most
recently amended the INA in the Antiterrorism and           This conclusion applies only in the rare instance
                          (continued...)                                            (continued...)

                                                    10
                       III.                                  sons, his hearing was unfair: (1) the INS did
   On two grounds, Renteria-Gonzalez urges                   not make reasonable efforts to locate and pro-
this court to grant his petition and reverse the             duce the illegal aliens he transported, and
final order of removal. First, he argues that he             (2) the IJ did not let him test, on cross-
did not receive a fair hearing before the IJ.                examination, Horger’s knowledge of Spanish.
Second, he contends that the IJ and BIA                      We disagree with both assertions.
lacked jurisdiction because the INS had not
properly terminated his temporary resident                                            1.
status before instituting deportation                            Renteria-Gonzalez insists that the INS
proceedings. Concluding that substantial                     failed in its duty to produce, or attempt to pro-
evidence supports the BIA’s decision, we deny                duce, the illegal aliens he transported. Instead,
the petition for review.                                     the INS produced only Horger, who testified
                                                             to the aliens’ statements that Renteria-
                       A.                                    Gonzalez and his accomplice, Bautista-Garcia,
   We generally review only the decision of                  had picked them up in Mexico for a fee.15 The
the BIA, not that of the IJ. Carbajal-                       INS also produced several Forms I-213, which
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.                  Horger used to record the aliens’ statements
1996). The IJ’s errors are relevant only                     during his investigation.
insofar as they affect the BIA’s decision. Id.
We defer to the BIA’s factual findings if they                   Renteria-Gonzalez contends that this failure
are supported by substantial evidence.                       to produce the aliens is unfair under Her-
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.                  nandez-Garza v. INS, 882 F.2d 945, 948 (5th
1997). The substantial evidence standard                     Cir. 1989), which held that “the use of
requires only that the BIA’s decision have                   affidavits from persons who are not available
some basis in fact, not that we necessarily                  for cross-examination does not satisfy the
agree with that board. Carbajal-Gonzalez, 78                 constitutional test of fundamental fairness un-
F.3d at 197. We will affirm the BIA’s decision               less the INS first establishes that despite rea-
unless the evidence compels a contrary                       sonable efforts it was unable to secure the
conclusion, i.e., if no reasonable factfinder                presence of the witness at the hearing.” In
could have agreed with the BIA. Id.                          Hernandez-Garza, we held that the INS did
                                                             not satisfy this standard where an INS attorney
                    B.                                       merely testified that he had sent letters to the
   Renteria-Gonzalez argues that, for two rea-               absent aliens but could not produce the copies


                                                                15
(...continued)                                                     The INS did not rely on Renteria-Gonzalez’s
of a criminal alien (1) whose deportation                    conviction at the hearing before the IJ, presumably
proceedings began before April 1, 1997, and ended            because the agency had concluded that the Order to
more than thirty days after September 30, 1996,              Vacate barred its use. The Order to Vacate did not
and (2) whose conviction qualifies as a jurisdiction-        bar the deportation proceeding altogether, though,
stripping offense under the IIRIRA definitions but           because to deport an alien, the INA requires only a
not under the pre-IIRIRA definitions. It just so             showing of, not a conviction of, unlawful presence
happens that Renteria-Gonzalez fits into this                in the United States and alien smuggling activities.
unusual category.                                            8 U.S.C. § 1227(a)(1)(B), (E)(i).

                                                        11
of the letters. Id.                                            Furthermore, Renteria-Gonzalez and his
                                                            accomplice, Bautista-Garcia, contradicted each
   Hernandez-Garza is distinguishable from                  other in their respective testimony. For
Renteria-Gonzalez’s situation in two important              instance, Renteria-Gonzalez testified that he
ways. First, the INS relied on Horger’s                     and Bautista-Garcia shopped for several hours
testimony, whereas in Hernandez-Garza the                   in Brownsville the day before their arrest,
INS relied on affidavits. The holding of Her-               whereas Bautista-Garcia testified that they re-
nandez-Garza was expressly limited to                       mained in their hotel all day. Such evidence,
affidavits, and justifiably so.                             coupled with Horger’s inherent credibility,
                                                            justified the IJ’s decision to credit Horger and
    Even if one supposes that Horger was lying              to discredit Renteria-Gonzalez.
about the aliens’ statementsSSand not even
Renteria-Gonzalez asserts he wasSSRenteria-                     Second, Renteria-Gonzalez does not
Gonzalez had the opportunity to cross-                      dispute that the INS attempted to locate and
examine Horger about the statements. The IJ,                produce the aliens; he argues only that the
therefore, could examine Horger’s demeanor                  agency did not employ the most effective
and tone to ascertain his credibility, which af-            means.     By contrast, the petitioner in
fects the weight given to the statements much               Hernandez-Garza asserted that the INS had
more than would the mere reading of a lifeless              not even attempted to locate and produce the
affidavit. Moreover, Horger’s testimony about               aliens.
the aliens’ statements was corroborated by the
Forms I-213, which another circuit has                          The INS admittedly did not make a
deemed “reliable document[s].” Guerrero-                    herculean effort to locate the alien witnesses in
Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir.               the instant matter; its attorney told the IJ that
2001).16                                                    he had conducted “CIS searches” for the five
                                                            aliens.17 Renteria-Gonzalez concedes that the
   Other evidence at the hearing buttressed                 INS in fact conducted this search but objects
Horger’s testimony and undermined Renteria-                 that it was not reasonably calculated to locate
Gonzalez’s credibility. For example, Renteria-              and produce the aliens. He contends that the
Gonzalez concealed his temporary residence                  INS could have mailed letters to the alien’s
card in his sock and did not produce the card               known addresses in Mexico, though he admits
when asked by Horger. Renteria-Gonzalez                     “the chances of success would have been
also lied about his temporary resident status,              minuscule.”
claiming, under interrogation by Horger, to be
an illegal alien.                                              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-
   16
      Insofar as Renteria-Gonzalez makes a hear-
                                                            dez-Garza, 882 F.2d at 948. The petitioner
say-type objection to the use of the Forms I-213,
we observe that these documents come within the
                                                               17
public records exception to the hearsay rule, FED.                According to Renteria-Gonzalez, CIS is a law
R. EVID. 803(8), not that the hearsay rules apply to        enforcement database; otherwise, the record does
deportation proceedings in the first place, Olabanji        not contain any information about CIS or the
v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992).                likelihood of success of a CIS search.

                                                       12
there argued that the INS had not sent the let-         examination, the IJ did not let him test Hor-
ters at all, and the court seemed to agree,             ger’s knowledge of Spanish; he hypothesizes
holding that the attorney’s assertions, without         that Horger did not fully understand Spanish
copies of the letters, could not establish that         and therefore misunderstood the aliens’
the INS had made reasonable efforts to locate           statements to him.          Renteria-Gonzalez
and produce the aliens. Id. Because Renteria-           contends that under Hernandez-Garza, he had
Gonzalez admits that the INS conducted the              a right to test Horger’s knowledge of Spanish,
search, he is left with the heavy burden of             because Horger’s language skills “were critical
demonstrating that the search was not a                 if the [immigration] judge was to admit and
reasonable effort. The IJ understandably                give credence” to his testimony. Hernandez-
concluded that Renteria-Gonzalez had not                Garza, 882 F.2d at 948. Renteria-Gonzalez
satisfied this burden with the bald assertion           argues that the IJ denied him this right by not
that letters might have been more successful.           allowing Renteria-Gonzalez’s counsel to test
                                                        Horger’s knowledge of Spanish by having
   No t only is Hernandez-Garza                         Horger speak with Renteria-Gonzalez in the
distinguishable, but Renteria-Gonzalez                  presence of the interpreter, who then could
stumbles several times on appeal as he                  testify to Horger’s knowledge of Spanish.
contends that the INS did not make reasonable
efforts to locate and produce the aliens under             This argument is almost frivolous. Hernan-
the reasoning of Hernandez-Garza. First,                dez-Garza is easily distinguishable. There,
Renteria-Gonzalez does not dispute Horger’s             defense counsel asked agents to translate a
veracity, and “people may not assert a cross-           written document from Spanish to English, so
examination right to prevent the government             the IJ could test the agents’ translations
from establishing uncontested facts.”                   against the interpreter’s translation. 882 F.2d
Olabanji, 973 F.2d at 1234 n.1. Second,                 at 948. The Hernandez-Garza court held that
Renteria-Gonzalez concedes the futility of              the IJ had erred by refusing to allow this test,
attempting to locate the aliens by letter in            because the interpreter merely would have
Mexico, which amounts to conceding the                  performed his ordinary duty by translating the
reasonableness of the INS’s efforts.                    document for the IJ to test against the agents’
                                                        translations.
   Third, Renteria-Gonzalez never explains
how the INS could have compelled the                       In the instant case, however, Renteria-Gon-
presence of the aliens at an administrative             zalez wanted the interpreter to become an in-
hearing in the United States, even if the agency        dependent witness to the Spanish conversation
had successfully written to them in Mexico.             between Renteria-Gonzalez and Horger.18
Given the distinctions between Hernandez-               More importantly, the IJ told Renteria-
Garza and this case and Renteria-Gonzalez’s             Gonzalez that “[i]f you want to find some
admissions, the BIA had substantial evidence            other way to address his competence in
to conclude that the INS’s failure to produce           Spanish, you’re free to do it, but not that
the aliens did not result in an unfair hearing.         way.” The BIA therefore had substantial

                    2.
   Renteria-Gonzalez insists that, on cross-               18
                                                             The IJ did not speak Spanish and hence could
                                                        not evaluate the conversation himself.

                                                   13
evidence to conclude that Renteria-Gonzalez              victed of Transporting an Illegal Alien Within
had a fair opportunity to test Horger’s                  the United States, a felony offense. This con-
knowledge of Spanish.                                    viction renders you ineligible for temporary
                                                         resident status.”
                        C.
    Renteria-Gonzalez avers that the BIA and                The Ninth Circuit recently and summarily
IJ lacked jurisdiction over his deportation pro-         rejected an identical argument, holding that the
ceedings. Before it may begin deportation                petitioner “had sufficient notice of the con-
proceedings against an alien who has                     viction underlying his deportation proceedings,
committed a deportable offense, the INS must             and any error in the Notice to Appear was
terminate his temporary resident status. In re           harmless.” Chowdhury v. INS, 249 F.3d 970,
Medrano, 20 I. & N. Dec. 216 (B.I.A. 1990).              973 n.2 (9th Cir. 2001). Moreover, Renteria-
                                                         Gonzalez obviously understood the INS’s
                                                         intent and its reason for termination, because
    The INS sent Renteria-Gonzalez a notice of           he rushed into district court shortly after
intent to terminate his temporary resident stat-         receiving the September 1991 notice and
us in September 1991 and terminated his status           asked the court to vacate his conviction.
in November 1991. The LAU affirmed the
termination in July 1992, and the INS did not               Renteria-Gonzalez cannot now feign
begin deportation proceedings until January              ignorance. The September 1991 notice plainly
1994, when it sent Renteria-Gonzalez an order            was sufficient.20
to show cause. Renteria-Gonzalez, however,
contends that his temporary resident status                 The petition for review is DENIED.
was not properly terminated, because the Sep-
tember 1991 notice cited the incorrect section           ENDRECORD
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               20
                                                               In a stroke of boldness, Renteria-Gonzalez
reason for termination: “[Y]ou were con-
                                                         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
   19
      The September 1991 notice of intent to ter-        resident status. To the contrary, however, because
minate cited former § 245A(b)(2)(A), 8 U.S.C.            the scrivener’s error in the September 1991 notice
§ 1255a(b)(2)(A) (1988), but it should have cited        was harmless, the INS effectively terminated his
former § 245A(b)(2)(B)(i)-(ii), 8 U.S.C. § 1255a-        temporary resident status, leaving no residency
(b)(2)(B)(i)-(ii) (1988).                                status at all to adjust to permanent status.

                                                    14
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


   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...)
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


   22
    (...continued)
(en banc), order vacated on other grounds sub nom. Lujan-Armendariz, 222 F.3d 728 (9th Cir.
2000)).

                                                   16
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
(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


   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
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




   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
