                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS          August 21, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                        ))))))))))))))))))))))))))               Clerk

                              No. 03-60842

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ARMANDO GAONA-ROMERO,

               Petitioner,

     v.

ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL,

               Respondent.


              Petition for Review of an Order of the
                    Board of Immigration Appeals


                ON PETITION FOR REHEARING EN BANC

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

Per Curiam:

     In a November 28, 2006 opinion, this court affirmed the

decision of Board of Immigration Appeals (“BIA”) to remove

Petitioner Armando Gaona-Romero (“Gaona”). Gaona-Romero v.

Gonzales, 207 F. App’x 386 (5th Cir. 2006) (unpublished). We

held, following this circuit’s precedent in Renteria-Gonzalez v.

INS, 322 F.3d 804 (5th Cir. 2003), that the BIA correctly

determined that Gaona is removable under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) on the basis of his vacated controlled

substance conviction.

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     Gaona now seeks en banc review of the panel decision in his

case. Gaona urges that this court should abandon its adherence to

Renteria and instead follow the interpretation of “conviction,”

defined in 8 U.S.C. § 1101(a)(48)(A), adopted by the BIA in In re

Pickering, 23 I. & N. Dec. 621 (BIA 2003). The Pickering approach

distinguishes between a conviction vacated for rehabilitative

purposes or immigration hardships and a conviction vacated

because of a procedural or substantive defect, and holds that the

former, but not the latter, counts as a “conviction” under

§ 1101(a)(48)(A) and thereby renders an alien removable under

§ 1182(a)(2)(A)(i)(II). Because Gaona’s controlled substance

conviction was vacated for substantive reasons, he asserts that

under Pickering, he would not be removable under

§ 1182(a)(2)(A)(i)(II).

     In response to Gaona’s petition for en banc review, the

government declares that it no longer takes the position that

Gaona should be removed on the basis of his vacated controlled

substances conviction. The government now takes the position that

Pickering, rather than Renteria, should be applied to this case,

and therefore Gaona’s vacated drug conviction does not render him

removable.

     The government explains that after this court’s decision in

Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005), the

government undertook a policy review to determine how removal

cases arising in the Fifth Circuit that involve vacated

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convictions should be treated. The government concluded that it

would not seek that removal decisions be upheld pursuant to

Renteria, but rather would request remand to the BIA so that the

government could take action in accord with Pickering. The

government thus concedes that it erred in this case by seeking

affirmance of the BIA’s removal decision on the basis of Gaona’s

vacated drug conviction. The government requests that this court

vacate its panel decision and remand to the BIA so that the

government may withdraw the charge of removability based upon

Gaona’s vacated drug conviction.

     Treating the government’s response to Gaona’s petition for

en banc reconsideration as a motion for panel rehearing, we

hereby vacate our November 28, 2006    opinion, Gaona-Romero v.

Gonzales, 207 F. App’x 386 (5th Cir. 2006), and remand to the BIA

so that the government may follow through on its pledge to

withdraw the charge of removability under § 1182(a)(2)(A)(i)(II).

Gaona’s petition for rehearing en banc is denied as moot because

the opinion which it seeks to review is vacated herein.

     VACATED and REMANDED.




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