                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2003

Acosta v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 01-2316P




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                                PRECEDENTIAL

                                        Filed August 15, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 01-2316


                       RAMON ACOSTA,
                                 Petitioner
                                v.
JOHN ASHCROFT, Attorney General of the United States,
                             Respondent

      ON PETITION FOR REVIEW OF AN ORDER OF
        THE BOARD OF IMMIGRATION APPEALS
                  (Agency No. A73 075 825)

                  Argued February 10, 2003
      Before: ALITO and McKEE, Circuit Judges, and
           SCHWARZER, Senior District Judge*

              (Opinion Filed: August 15, 2003)
                        WAYNE SACHS (argued)
                        1601 Market Street
                        Suite 690
                        Philadelphia, PA 19103
                        Counsel for Petitioner




* Honorable William W Schwarzer, Senior Judge of the United States
District Court for the Northern District of California, sitting by
designation.
                                    2


                           THOMAS W. HUSSEY
                           Director
                           Civil Division
                           MARGARET PERRY
                           LYLE D. JENTZER
                           ANH-THU P. MAI
                           BLAIR T. O’CONNOR (argued)
                           TERRI J. SCADRON
                           LINDA S. WERNERY
                           Office of Immigration Litigation
                           Civil Division
                           U.S. Department of Justice
                           P.O. Box 878, Ben Franklin Station
                           Washington, D.C. 20044
                           Counsel for Respondent


                    OPINION OF THE COURT

ALITO, Circuit Judge:
   Ramon Acosta petitions for review of a final order of
deportation issued by the Board of Immigration Appeals
(the “BIA”). Acosta challenges the BIA’s holding that he has
“been convicted of a violation of . . . a State [law] . . .
relating to a controlled substance,” within the meaning of
former Section 241(a)(2)(B)(i) of the Immigration and
Naturalization Act of 1952 (the “INA”), 8 U.S.C.
§ 1251(a)(2)(B)(i) (1994),1 by virtue of his 1995 plea of nolo
contendere in Pennsylvania state court to a single charge of
heroin possession and the state court’s order that he serve
one year of probation. Under the transitional rules

1. Because Acosta’s deportation proceedings lasted from March 1995
until April 2001, we apply former Section 241(a)(2)(B)(i) of the INA. See
Section 309(c)(1) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (the “IIRIRA”), Pub. L. 104-208, 110 Stat.
3009 (providing that, as a general rule, the pre-IIRIRA INA governs
deportation proceedings that were in progress as of April 1, 1997).
Former Section 241(a)(1)(B) applies to aliens who entered the United
States without inspection and former Section 241(a)(2)(B)(i) to aliens who
have been convicted of a controlled substance offense.
                                    3


promulgated under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (the “IIRIRA”), Pub. L.
104-208, 110 Stat. 3009, we have no jurisdiction to
consider appeals from final orders of deportation that are
issued “by reason of [an alien’s] having committed a
[controlled substance] offense.”2 IIRIRA § 309(c)(4)(G). We
may, however, consider whether the disposition of Acosta’s
criminal proceeding under Pennsylvania law constitutes
such a conviction. See Bovkun v. Ashcroft, 283 F.3d 166,
168-69 (3d Cir. 2002) (interpreting a similar jurisdiction-
stripping provision applicable to aliens who have been
convicted of the commission of an aggravated felony).
Acosta argues that the BIA erred when it failed to recognize
an exception to the definition of “conviction” provided in
Section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A),3
that purportedly arises as a result of the provisions of the
Federal First Offenders Act (“FFOA”), 18 U.S.C. § 3607. We
reject this argument, and we therefore dismiss his petition
for review.

                                    I.
  On or around February 20, 1994, Acosta, a citizen of the
Dominican Republic, entered the United States without
inspection at or near Mayaguez, Puerto Rico. App. at 192.
In February 1995, he married Virginia Ortiz, a United
States citizen, in Philadelphia, Pennsylvania. Id. at 181. On
February 28, 1995, he was arrested by the Philadelphia
police and charged with heroin possession, in violation of
Section 13 of the Pennsylvania Controlled Substance, Drug,
Device and Cosmetic Act (“Pennsylvania Controlled
Substance Act”), Pa. Stat. Ann. tit. 35, § 780-113 (West

2. IIRIRA § 309(c)(4)(G) governs because Acosta’s final order of
deportation was entered “more than 30 days after the date of the
enactment of [the IIRIRA].” IIRIRA § 309(c)(4).
3. Even though Acosta’s nolo contendere plea was entered in October of
1995, before the enactment by the IIRIRA of Section 101(a)(48)(A), the
revised definition governs these proceedings retroactively. See IIRIRA
§ 322(c) (providing that the definition in Section 101(a)(48)(A) applies to
“convictions and sentences entered before, on, or after the date of the
enactment of this Act”).
                                    4


1995). App. at 122A. The police contacted the Immigration
and Naturalization Service (the “INS”), and on March 2,
1995, the Philadelphia office of the INS served Acosta with
an Order to Show Cause and Notice of Hearing, alleging
that he was deportable under former Section 241(a)(1)(B) of
the INA, for entering the United States without inspection.
App. at 192-97. On April 7, 1995, Virginia Ortiz filed with
the INS service center in Vermont a petition for the
adjustment of Acosta’s status to that of legal permanent
resident. Id. at 172-85.
   In July 1995, at a hearing before an Immigration Judge
(“IJ”), Acosta conceded that he was deportable, pursuant to
former Section 241(a)(1)(B) of the INA, for having entered
the United States illegally, but he claimed that, because he
was the beneficiary of a pending immediate-relative petition
filed by a United States citizen, he should not be ordered
deported. In the alternative, he argued that he should be
permitted to depart voluntarily in lieu of deportation. App.
at 26-27. The IJ adjourned the hearing “pending disposition
of the criminal matter.” Id. at 28.
   In October 1995, Acosta entered a plea of nolo
contendere in the Court of Common Pleas in Philadelphia to
the charge of possessing 0.36 grams of heroin, in violation
of Section 13 of the Pennsylvania Controlled Substance Act,
Pa. Stat. Ann. tit. 35, § 780-113. Id. at 122A, 127. Pursuant
to Section 17 of the Pennsylvania Controlled Substance Act,
the Court elected to place Acosta, as a nonviolent and drug
dependent offender, on one year of probation without
entering a verdict. Pa. Stat. Ann. tit. 35 § 780-117 (West
1995).4 App. at 127. Court records submitted by Acosta
indicate that he successfully completed his probation and
that the charges against him were ultimately dismissed
without any adjudication of guilt.5 App. to Appellant’s Reply
Br.

4. This disposition without verdict is available to an offender who “pleads
nolo contendere or guilty to any nonviolent offense . . . and . . . proves
he is drug dependent.” Pa. Stat. Ann. tit. 35 § 780-117 (West 1995).
5. INS records show that, during the period of his probation, Acosta was
briefly detained by the INS and the Philadelphia police as part of an
investigation into heroin sales, but was released without charge. App. at
121.
                             5


   Following Acosta’s entry of a plea of nolo contendere, his
deportation hearing resumed, only to be postponed pending
the outcome of the application for adjustment of status that
Ortiz had filed with the INS service center in Vermont in
March 1995. App. at 42-43, 48-56. In June 1996, the INS
in Vermont determined that Acosta was eligible to adjust
his status to that of a legal permanent resident. Id. at 129.
At a hearing before the IJ in August 1996, the Philadelphia
office of the INS opined that Acosta’s plea of nolo
contendere presented no statutory impediment to his
application for adjustment of status, but nevertheless
requested that the IJ exercise his discretion to refuse
Acosta’s application to become a legal permanent resident.
Id. at 59-60.
  In February 1997, the INS reversed its position and
submitted a brief arguing that Acosta’s 1995 nolo
contendere plea to heroin possession constituted a
conviction of a controlled substance offense that would
support his deportation under former Section 241(a)(2)(B)(i)
of the INA. App. at 111-16. The INS explained that the
passage of the IIRIRA and the enactment of Section
101(a)(48)(A) of the INA had revised the definition of
“conviction” that applies in immigration proceedings. App.
at 114. In January 1998, the INS added to its prior charge
the additional charge of deportability for conviction of a
controlled substance offense, pursuant to former Section
241(a)(2)(B)(i) of the INA. App. at 108-09.
   In March 1998, the IJ ruled that Acosta’s nolo
contendere plea satisfied the definition of “conviction”
provided in Section 101(a)(48)(A) of the INA, thereby
rendering him ineligible for adjustment of status to that of
legal permanent resident and disqualifying him from
applying for voluntary departure in lieu of deportation. Id.
at 104-05. The IJ ordered Acosta deported to the
Dominican Republic. Id. Acosta appealed to the BIA, but
the BIA affirmed Acosta’s deportation order on the grounds
that he had entered the United States without inspection,
pursuant to former Section 241(a)(1)(B) of the INA, and that
he had been convicted of an offense relating to a controlled
substance, pursuant to former Section 241(a)(2)(B)(i) of the
INA. App. at 2-3. This petition for review followed.
                                6


                                II.
   Whether the definition of “conviction” provided in Section
101(a)(48)(A) of the INA encompasses a charge of possessing
a controlled substance that has been dismissed pursuant
to Section 17 of the Pennsylvania Controlled Substance Act
is a purely legal question over which we exercise plenary
review. See Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.
2002) (applying plenary review to the question of whether
embezzlement of bank funds under 18 U.S.C. § 656
constituted an aggravated felony under the INA). The BIA’s
interpretation of the INA is, however, subject to established
principles of deference. INS v. Aguirre-Aguirre, 526 U.S.
415, 424-25 (1999). Accordingly, “if the intent of Congress
is clear, that is the end of the matter; for the court, as well
as the agency, must give effect to the unambiguously
expressed intent of Congress.” Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
On the other hand, “if the statute is silent or ambiguous
with respect to the specific issue, the question for the court
is whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. In its interpretation
of the INA, “the BIA should be afforded Chevron deference
as it gives ambiguous statutory terms ‘concrete meaning
through a process of case-by-case adjudication.’ ” Aguirre-
Aguirre, 526 U.S. at 425 (quoting INS v. Cardoza-Fonseca,
480 U.S. 421, 448 (1987)).
  Section 101(a)(48)(A)    of    the   INA   defines   the   term
“conviction” as follows:
    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.
                                   7


INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
   This section thus provides that, in cases where no formal
judgment of guilt has been entered by a court, an alien will
be considered to have been convicted for the purposes of
the INA if the disposition of the alien’s criminal proceeding
satisfies a two part test: “(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.” Id. This language unambiguously points to the
conclusion that the disposition of Acosta’s criminal case in
the Court of Common Pleas constitutes a “conviction.”6
  As noted, Acosta’s case was treated under Section 17 of
the Pennsylvania Controlled Substance Act, which provides
in pertinent part as follows:
     [T]he court may place a person on probation without

6. Moreover, there is evidence that Congress intended that Section
101(a)(48)(A) be afforded its plain meaning. For example, the House
Conference Report stated that “section [101(a)(48)(A)] deliberately
broadens the scope of the definition of ‘conviction’ beyond that adopted
by the Board of Immigration Appeals in Matter of Ozkok, 19 I&N Dec.
546 (BIA 1988).” H.R. Conf. Rep. 104-828 at 224. The Ozkok decision
had offered a three-part definition of “conviction”:
    (1) a judge or jury has found the alien guilty or he has entered a
    plea of guilty or nolo contendere or has admitted sufficient facts to
    warrant a finding of guilty;
    (2) the judge has ordered some form of punishment, penalty, or
    restraint on the person’s liberty to be imposed . . . and
    (3) a judgment or adjudication of guilt may be entered if the person
    violates the terms of his probation or fails to comply with the
    requirements of the court’s order, without availability of further
    proceedings regarding the person’s guilt or innocence of the original
    charge.
19 I&N Dec. 546 (BIA 1988). Parts (1) and (2) were incorporated as
paragraphs (i) and (ii) of Section 101(a)(48), and part (3) was omitted,
making the definition in Section 101(a)(48) broader than the Ozkok
definition, in accordance with the intent expressed in the Conference
Report.
                               8


    verdict if the person pleads nolo contendere or guilty to
    any nonviolent offense under this act and the person
    proves he is drug dependent. . . . The term of probation
    shall be for a specific time period not to exceed the
    maximum for the offense upon such reasonable terms
    and conditions as the court may require.
Pa. Stat. Ann. tit. 35 § 780-117 (emphasis added). Based on
this language in Section 17, it appears that a disposition
under Section 17 satisfies the two part test laid out in
Section 101(a)(48)(A) of the INA. The accused enters a plea
of nolo contendere, which satisfies part (i), and the
Pennsylvania court then orders a term of probation, which
is “a form of punishment, penalty, or restraint on the
alien’s liberty,” INA § 101(a)(48)(A), that satisfies part (ii).
  Acosta relies, however, on the following language that
also appears in Section 17:
    Upon fulfillment of the terms and conditions of
    probation, the court shall discharge such person and
    dismiss the proceedings against him. Discharge and
    dismissal shall be without adjudication of guilt and
    shall not constitute a conviction for any purpose
    whatever, including the penalties imposed for second
    or subsequent convictions.
Pa. Stat. Ann. tit. 35 § 780-117 (emphasis added). We
assume for the sake of argument that this language is
sufficient to establish that a disposition under Section 17
does not constitute a conviction for any purpose under
Pennsylvania law. But since the Pennsylvania Legislature
obviously cannot dictate how the term “conviction” is to be
construed under federal law, this language in Section 17
cannot on its own rescue Acosta from the definition of
“conviction” in INA § 101(a)(48)(A).
   Acosta, however, does not rely exclusively on the
language of Section 17, but contends that the BIA failed to
take account of a tacit exception to the INA’s definition of
“conviction” that arises as a result of the FFOA. 18 U.S.C.
§ 3607. Acosta argues that this exception was implicitly
incorporated into Section 101(a)(48)(A) when the IIRIRA was
enacted. Under the FFOA, a first-time offender who has
been found guilty of an offense under the Controlled
                                    9


Substances Act, 21 U.S.C. § 844, the federal statute that
criminalizes simple possession of a controlled substance,
may be ordered, at the discretion of the court, to serve
“probation for a term of not more than one year without
[the court’s] entering a judgment of conviction.” Id. Upon
the offender’s successful completion of probation, the court
dismisses the proceedings, and the FFOA, much like the
Pennsylvania statute discussed above, provides that such a
dismissal “shall not be considered a conviction for the
purpose of a disqualification or a disability imposed by law
upon conviction of a crime, or for any other purpose.” Id.
(emphasis added).
   Acosta’s argument based on the FFOA proceeds in two
steps. First, noting that repeals by implication are
disfavored, he maintains that the subsequent enactment of
the broad definition of “conviction” in INA § 101(a)(48)(A) did
not disturb the rule set out in the FFOA that a disposition
under that Act is not to be considered as a “conviction” for
any purpose. Second, he argues that, in order to avoid
equal protection problems, this implicit exception must be
extended, not only to aliens who are charged in federal
court and treated under the federal FFOA, but also to
aliens, like himself, who are charged in state court and
treated under a state law that is analogous to the FFOA.
   Because we cannot agree with the second step of Acosta’s
argument — that equal protection mandates the same
treatment for aliens charged in federal and state court —
we find it unnecessary to decide whether the first step of
his argument is also flawed.7 For present purposes, we

7. Neither the BIA and nor the Courts of Appeals have squarely decided
whether proceedings that have been dismissed under the FFOA should
be excepted from the definition of conviction provided in Section
101(a)(48)(A) of the INA. See, e.g., Vasquez-Velezmoro v. INS, 281 F.3d
693, 697 (8th Cir. 2002) (noting that “[p]etitioner did not receive relief
under the FFOA”); Dillingham v. INS, 267 F.3d 996, 1001 (9th Cir. 2001)
(considering the effect of a conviction that had been expunged under
British law); Sandoval v. INS, 240 F.3d 577, 850 n.4 (7th Cir. 2001)
(noting that the issue was not raised on appeal); Lujan-Armendariz v.
I.N.S., 222 F.3d 728, 732-34 (9th Cir. 2000) (considering petitions from
aliens who had been separately prosecuted for drug possession under
                                  10


shall assume that an exception to the definition of
conviction provided in Section 101(a)(48)(A) of the INA
exists for aliens whose charges have been dismissed under
the FFOA. We also assume that Acosta would have been
eligible for FFOA treatment had he been charged in federal
court under the Controlled Substances Act, 21 U.S.C.
§ 844. Nevertheless, because we are convinced that Acosta,
whose criminal proceedings were dismissed in state court,
falls squarely within the definition of conviction in Section
101(a)(48)(A) of the INA, we hold that we lack jurisdiction to
entertain Acosta’s petition for review.
   The presumption against statutory repeals by implication
clearly cannot aid an alien like Acosta whose criminal case
was handled in state court because prior to the enactment
of INA § 101(a)(48)(A) no federal statute dictated that a
disposition such as Acosta’s was not to be considered a
“conviction” under federal law. Acosta relies, however, on a
1995 en banc decision of the BIA, In re Manrique, 21 I & N
Dec. 58, 64 (BIA 1995), for the proposition that “an alien
who has been accorded rehabilitative treatment under a
state statute will not be deported if he establishes that he
would have been eligible for federal first offender treatment
under the provisions of [the FFOA] had he been prosecuted
under federal law.” Because Manrique predates the
enactment of Section 101(a)(48), Acosta further relies on a
Ninth Circuit decision, Lujan-Armendariz v. I.N.S., 222 F.3d
728 (9th Cir. 2000), for the proposition that Section
101(a)(48)(A) “does not repeal either the Federal First
Offender Act or the rule [set forth in Manrique].” Id. at 749
(emphasis added). In reaching this conclusion, the Lujan-
Armendariz panel relied on two prior Ninth Circuit
decisions for the proposition that “aliens may not be treated

Arizona and Idaho law); In re Salazar-Regino, 23 I & N Dec. 223, Int.
Dec. No. 3462, 2002 WL 339535 (BIA Feb. 14, 2002) (deciding whether
a deferred adjudication for felony possession of marijuana under Texas
law constitutes a conviction under the INA); In re Roldan-Santoyo, 22 I
& N Dec. 512, Int. Dec. No. 3377, 1999 WL 126433 (BIA, March 5, 1999)
(considering whether the expungement of a guilty plea under an Idaho
statute constitutes a conviction under the INA), rev’d in part by Lujan-
Armendariz, 222 F.3d at 732-34.
                              11


differently based on the ‘mere fortuity’ that they happen to
have been prosecuted under state rather than federal law
. . . as there is no rational basis for distinguishing among
the affected groups.” 222 F.3d at 748, citing Paredes-
Urrestarazu v. INS, 36 F.3d 801, 811-12 (9th Cir. 1994);
Garberding v. INS, 30 F.3d 1187, 1191 (9th Cir. 1994).
Lujan-Armendariz reversed an interim decision of the BIA,
In re Roldan-Santoyo, I & N Dec., Int. Dec. No. 3377, 1999
WL 126433 (BIA, March 5, 1999), which had interpreted
Section 101(a)(48)(a) of the INA, with its revised definition of
conviction, as overruling the rule set forth in Manrique.
Following the Lujan-Armendariz decision, the BIA reaffirmed
its adherence to the Roldan-Santoyo standard, while
acquiescing to Lujan-Armendariz with respect to cases in
the Ninth Circuit. See In re Salazar-Regino, 23 I & N Dec.
223, Int. Dec. No. 3462, 2002 WL 339535 at *9 (BIA, Feb.
14, 2002) (“[E]xcept in the Ninth Circuit, a first-time simple
drug possession offense expunged under a state
rehabilitative statute is a conviction under Section
101(a)(48)(A) of the [INA].”). Accordingly, the BIA’s present
interpretation of Section 101(a)(48)(A), as applied in
immigration proceedings outside of the Ninth Circuit, is
that state law charges of simple possession of a controlled
substance that have been dismissed are a conviction for
purposes of the INA, in accordance with the plain language
of Section 101(a)(48)(A), where the alien has been found
guilty and ordered to serve probation. Even if we were to
accept that the FFOA creates some ambiguity or
uncertainty     regarding    the   application    of    Section
101(a)(48)(A), we are bound to follow the BIA’s construction,
so long as it “is based on a permissible construction” of
Section 101(a)(48)(A). Chevron, 467 U.S. at 843. The BIA’s
interpretation that Section 101(a)(48)(A) should be afforded
its plain meaning, and that an implied exception that arises
under the FFOA should not be read into section
101(a)(48)(A), does not, on its face, appear to be an
impermissible construction. Acosta argues, however, that
the BIA’s interpretation is not permissible because it
violates his right to equal protection.
  Before addressing Acosta’s equal protection argument, we
must revisit Section 101(a)(48)(A). Acosta urges us to
discount the plain meaning of Section 101(a)(48)(A) and,
                                  12


instead, adopt the interpretation of that section advanced
by the Ninth Circuit in Lujan-Armendariz, supra.
Appellant’s Br. at 30. The Lujan-Armendariz court proposed
that Section 101(a)(48)(A) be read narrowly as simply
removing a distinction between the treatment of aliens
whose criminal charges had been dismissed under two
different types of rehabilitation statutes: (1) statutes that
provide for the formal entry of a judgment of guilt that is
later expunged upon successful completion of probation;
and (2) statutes that postpone a formal judgment of guilt
pending the alien’s successful completion of a period of
probation. 222 F.3d at 741-42.
   With respect, we see no basis for such an interpretation.
First, it is inconsistent with the statutory language. Second,
we find no evidence in the legislative history that would so
confine the meaning of Section 101(a)(48)(A).8 Third, we
note that the Ninth Circuit has itself rejected the
construction of Section 101(a)(48)(A) proposed in Lujan-
Armendariz. Murillo-Espinosa v. INS, 261 F.3d 771, 774
(9th Cir. 2001) (holding that an aggravated felony
conviction that had been vacated under Arizona law is a
conviction for immigration purposes under the plain
language of Section 101(a)(48)(A)). Fourth, other Circuits
that have considered the scope of Section 101(a)(48)(A) have
followed the plain meaning of the statutory language. See,

8. As noted, see footnote 6, supra, the House Conference Report stated
that Section 101(a)(48)(A) deliberately broadened the scope of the
definition of “conviction” beyond that adopted by the BIA in Matter of
Ozkok, 19 I & N Dec. 546 (BIA 1988). H.R. Conf. Rep. 104-828 at 224.
As also noted, the Ozkok decision offered a three-part definition of
“conviction”, of which the first two parts were incorporated as
paragraphs (i) and (ii) of Section 101(a)(48)(A), while the third, which
considered whether a judgment of guilt could have been entered by the
court without further proceedings relating to guilt upon the alien’s
violation of the terms of probation, was omitted. 19 I&N Dec. 551-52.
The third part of the Ozkok definition drew a distinction between
rehabilitative statutes that deferred adjudication and those which
expunged a prior admission or adjudication of guilt. Because this part
was omitted from Section 101(a)(48)(A), we infer a congressional intent
not to incorporate such a distinction into the INA, but we do not infer
that the elimination of such a distinction was the sole purpose of
passing the revised definition of conviction in Section 101(a)(48)(A).
                             13


e.g., United States v. Anderson, 328 F.3d 1326, 3128 (11th
Cir. 2003) (adopting the plain meaning of Section 101(a)(48)
in interpreting the meaning of a “conviction” in U.S.S.G.
§ 2L1.2(b)(1)); Renteria-Gonzalez v. INS, 322 F.3d 804, 812
(5th Cir. 2002) (applying the plain meaning of Section
101(a)(48)(A) in holding that a vacated federal conviction for
trafficking in aliens remains a conviction for purposes of
the INA); United States v. Zamuido, 314 F.3d 517, 521-22
(10th Cir. 2002) (adopting the plain meaning of Section
101(a)(48)(A) when interpreting U.S.S.G. § 2L1.2(b)(1));
Vasquez-Velezmoro v. INS, 281 F.3d 693, 696-99 (8th Cir.
2002) (looking to the plain meaning of Section 101(a)(48)(A)
to determine whether an expunged Texas conviction for
possession of marijuana constituted a conviction under the
INA); Herrera-Inirio v. INS, 208 F.3d 299, 304 (1st Cir.
2000) (holding that an alien’s guilty plea and the service of
probation to charges of spousal abuse entered under Puerto
Rican law constituted a conviction for immigration
purposes, since the language of Section 101(a)(48)(A)
“leaves nothing to the imagination”); United States v.
Campbell, 167 F.3d 94, 98 (2d Cir. 1999) (applying the
plain language of Section 101(a)(48)(A) to determine that a
conviction for possession of a controlled substance that had
been set aside after service of probation under Texas law
constituted a conviction for sentencing purposes).
Accordingly, in our consideration of Acosta’s equal
protection argument, we reject the narrow interpretation of
Section 101(a)(48)(A) advanced by the Court in Lujan-
Armendariz and apply the plain meaning of that section,
i.e., that an alien is considered convicted if a state “judge
or jury . . . found the alien guilty” and “the judge . . .
ordered some form of punishment, penalty, or restraint on
the alien’s liberty to be imposed.” INA § 101(a)(48)(A).
   Congress has plenary power to pass legislation
concerning the admission and exclusion of aliens. U.S.
Const. art. 1, § 8, cl. 4; Plyler v. Doe, 457 U.S. 202, 225
(1992). We therefore apply rational basis review to Acosta’s
argument that equal protection mandates that the
dismissal of his state charge of heroin possession should be
treated as if the same charge had been dismissed under the
FFOA. See Pinho v. INS, 249 F.3d 183, 190 (3d Cir. 2001).
Under rational-basis review, a classification “must be
                              14


upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.” FCC v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993). Here, we
can easily see a rational basis for a distinction between
aliens whose criminal cases are dismissed under the federal
FFOA and those whose charges are handled under similar
state schemes. Familiar with the operation of the federal
criminal justice system, Congress could have thought that
aliens whose federal charges are dismissed under the FFOA
are unlikely to present a substantial threat of committing
subsequent serious crimes. By contrast, Congress may
have been unfamiliar with the operation of state schemes
that resemble the FFOA. Congress could have worried that
state criminal justice systems, under the pressure created
by heavy case loads, might permit dangerous offenders to
plead down to simple possession charges and take
advantage of those state schemes to escape what is
considered a conviction under state law. Particularly in
view of Congress’s power in immigration matters, it seems
plain that rational-basis review is satisfied here. As the
Supreme Court recently noted, “[i]n the exercise of its broad
power over naturalization and immigration, Congress
regularly makes rules that would be unacceptable if applied
to citizens.” Demore v. Kim, 123 S.Ct. 1708, 1711 (2003)
(quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)).
Accordingly, we reject Acosta’s equal protection argument.
   For these reasons, we hold that Acosta was convicted of
a controlled substance offense for purposes of the INA and
that we are therefore barred by Section 309(c)(4)(G) of the
IIRIRA from considering his petition for review of his final
order of deportation.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
