                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-3837




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                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 04-3837


        GUMMERSINDO J. PINHO;
          DANIELLE PINHO,

                       Appellants

                        v.

       ALBERTO R. GONZALES,*
   Attorney General of the United States;
  MICHAEL CHERTOFF,* Secretary of the
     Department of Homeland Security;
 ANDREA QUARANTILLO, District Director
    Newark District of the United States
   Citizenship and Immigration Services;
DEPARTMENT OF HOMELAND SECURITY;
     UNITED STATES CITIZENSHIP
    AND IMMIGRATION SERVICES

 *Substituted pursuant to FED. R. APP. P. 43(c)
      On Appeal from the United States District Court
                 for the District of New Jersey
                    (D.C. No. 03-cv-06232)
      District Judge: Honorable Dennis M. Cavanaugh


              Argued September 15, 2005
   Before: ROTH, McKEE and FISHER, Circuit Judges.

                 (Filed: December 20, 2005)

Thomas E. Moseley (Argued)
One Gateway Center, Suite 2600
Newark, NJ 07102
     Attorney for Appellants

Susan C. Cassell (Argued)
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
       Attorney for Appellees



                OPINION OF THE COURT




                              2
FISHER, Circuit Judge.

       In this case we are asked to decide when a vacated
criminal conviction remains a “conviction,” and when it does
not, for purposes of determining an immigrant’s eligibility for
deportation. We conclude that the government may reasonably
draw a distinction between convictions vacated for rehabilitative
purposes and those vacated because of underlying defects in the
criminal proceedings, and we establish a categorical test to
guide this determination. Applying this test, we will reverse the
judgment of the District Court.

                               I.

                               A.

       Petitioner Gummersindo Pinho, a native of Portugal, is
married to a United States citizen with whom he has two
children, who are also U.S. citizens. In February 1992, Pinho
was arrested and charged with three third-degree drug offenses
under New Jersey law: possession of cocaine (“Count I”),
possession with intent to distribute cocaine (“Count II”), and
possession with intent to distribute cocaine on or near school
property (“Count III”). Because he had no prior criminal record,
Pinho applied for admission into New Jersey’s “Pre-Trial
Intervention” program (“PTI”), under which criminal
proceedings would be postponed pending Pinho’s completion of
a rehabilitation program, at which point the charges would be




                               3
dropped. Admission into PTI did not require an admission of
guilt.1

      1
       The PTI program worked in 1992 just as it does today:
once a defendant is accepted, the judge postpones all
proceedings against him for at most thirty-six months, after
which the judge must either dismiss the indictment, postpone
proceedings further, or restore proceedings. With respect to
dismissal, the relevant rule provides:

      On the recommendation of the program director
      and with the consent of the prosecutor and the
      defendant, [“the designated judge shall”] dismiss
      the complaint, indictment or accusation against
      the defendant, such a dismissal to be designated
      ‘matter adjusted - complaint (or indictment or
      accusation) dismissed.’

N.J. Rules Governing Criminal Practice, Rule 3-28 (1992
version).

       The New Jersey Supreme Court has issued guidelines for
operation of PTI. Guideline 4 provides: “Enrollment in PTI
programs should be conditioned upon neither informal
admission nor entry of a plea of guilty. Enrollment of
defendants who maintain their innocence should be permitted
unless the defendant’s attitude would render pre-trial
intervention ineffective.”   The accompanying comment
provided:

      A PTI program is presented to defendants as an

                             4
       Pinho’s application to PTI was rejected, however. At the
time, the local state prosecutor’s office, acting in accordance
with a directive of the state Attorney General, had a per se rule
against accepting into PTI any defendant against whom there
was a viable case for possession with intent to distribute drugs
at or near a school. See State v. Caliguri, 726 A.2d 912, 921
(N.J. 1999). This rule was later invalidated by the New Jersey
Supreme Court as contravening the purposes of the statute
governing PTI. Id. Under the New Jersey Rules, appeal of
denials of PTI applications was permitted only following a
conviction or guilty plea. N.J. Rules Governing Criminal
Practice Rule 3.28(f), (g) (1992 version).

       On August 17, 1992, Pinho pleaded guilty to Count I,
possession of cocaine. He was represented at the time of the
plea by the same attorney who helped him apply to PTI. Counts
II and III were dismissed. Pinho’s sentence was two years’


       opportunity to earn a dismissal of charges for
       social reasons and reasons of present and future
       behavior, legal guilt or innocence
       notwithstanding. . . . Within the context of
       pretrial intervention, when and whether guilt
       should be admitted is a decision for
       counselors. . . . Neither admission of guilt nor
       acknowledgment or responsibility is required.
       Steps to bar participation solely on such grounds
       would be an unwarranted discrimination.

N.J. Rules Governing Criminal Practice, Rule 3-28, Guideline
4, Comment (1992 version).

                               5
probation, a substance abuse evaluation, an assessment of
$1,080, and the loss of his driving privileges for six months.

        On June 2, 1997, some five years later, and after he had
served his sentence, Pinho, now represented by different
counsel, applied for post-conviction relief in New Jersey
Superior Court, contending that he had received ineffective
assistance of counsel in connection with his rejection from PTI.
The motion was timely, see N.J. Court Rule 3.22-12(a)
(providing that motions for post-conviction relief are timely
within five years). In the motion, Pinho alleged that his prior
counsel had failed to ascertain whether the conduct underlying
Count III had actually occurred near a school. It is undisputed
that while the building had previously been a school, it was, at
the time of the alleged crime, in fact not a school, but rather a
maintenance and storage building. Pinho contended that, had
this fact been known, he would not have been deemed ineligible
for PTI through the operation of the per se rule.2 New Jersey
courts have held that counsel’s failure to establish PTI eligibility
can support ineffective assistance claims. See State v. Marrero,


       2
        Eligibility, of course, does not guarantee acceptance,
which remained in the prosecutor’s discretion. Because of the
operation of the rule, though, Pinho was never even considered.
So while he might eventually have been rejected even with
effective assistance of counsel, he would not have been rejected
because of the rule. In this respect, Pinho’s 1992 PTI
application mirrors his 2000 adjustment of status application. In
each case a non-discretionary eligibility determination served as
the gatekeeper for a discretionary action.

                                 6
383 A.2d 131, 132 (N.J. Super. Ct. 1978); State v. Cruz,
No. A-5184-02T5 (N.J. Super. Ct. 2004) (unpublished).

       The state did not file an answer to Pinho’s motion, and
the court held a hearing on his claim on March 10, 1998. At that
hearing, the court observed:

       [The parties] have been dealing with this matter
       for several months, the upshot of which was that
       there would be an application by Mr. Pinho to P-
       T-I. If acceptable then the matter would be
       dismissed once he was placed in P-T-I – and since
       Mr. Pinho has been accepted into P-T-I, I think
       the previous judgment of conviction can be
       vacated.

Transcript at 3, New Jersey v. Pinho, No.1009-6-92 (N.J. Super.
Ct. Mar. 10, 1998).3 The prosecutor responded, “Very good,
Judge, I move for that dismissal if need be.” Id. By letter dated

       3
         The record does not contain a vacatur order other than
this statement from the bench. It is not disputed, however, that
the conviction was in fact vacated. Whether the subsequent
dismissal order may be treated as an imiplicit vacatur order, or
whether the judge’s statement from the bench was itself the
vacatur order is of little moment. A paper record merely
memorializes a judicial act, and the record is clear that the
judicial act was carried out:         Pinho’s conviction was
“dismiss[ed], cancel[ed] . . . discharge[d] or otherwise
remove[d].” Sandoval v. I.N.S., 240 F.3d 577, 583 (7th Cir.
2001).

                               7
May 1, 1998, the prosecutor’s office consented to Pinho’s
admission to PTI. The letter explained that “[t]his approval is
based upon the facts and circumstances of this case and this
defendant.” Letter from John N. Shaughnessy, Assistant
Prosecutor, County of Middlesex, New Jersey, to Ronald W.
Reba (May 1, 1998). All charges against Pinho were then
dismissed by order dated May 21, 1998. The order provided:

      Upon application of Pretrial Intervention Program
      for an Order to dismiss the above captioned . . .
      indictments . . . pursuant to Rule 3:28 . . . the
      Court having considered the report of the Pretrial
      Intervention Program concerning the defendant’s
      participation. . . . It is on this 21st day of May
      1998 ORDERED that the . . . indictments . . . [be]
      dismissed . . . [and] the clerk . . . is hereby
      directed to mark the court record “Complaint
      dismissed – matter adjusted.’

Order of Dismissal, New Jersey v. Pinho, No. 1009-6-92 (N.J.
Super. Ct. May 21, 1998).

                              B.

       In January 2000, Pinho applied to the Newark District
Office of the Immigration and Naturalization Service (“INS”)
for an adjustment of his immigration status to “permanent
resident” under 8 U.S.C. § 1255, based upon his marriage to a
U.S. citizen. In a decision dated December 11, 2000, the INS
denied adjustment on the ground that Pinho was inadmissible to
the United States under 8 U.S.C. § 212(a)(2)(A)(i)(II), which

                              8
provides that “any alien convicted of, or who admits having
committed, or who admits committing acts which constitute the
essential elements of a violation of . . . any law or regulation of
a State . . . relating to a controlled substance . . . is
inadmissible.”4 The agency reasoned that Pinho’s 1992 plea to
Count I in New Jersey met the definition of “conviction” in
§ 1011(a)(48)(A). That section provides:

       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 or guilt, and

       4
       Neither the Newark District Office, the Office of
Administrative Appeals, the District Court, nor the government
on appeal, analyzes 8 U.S.C. § 1182(a)(2)(C), which provides
that

       [a]ny alien who the consular or immigration
       officer knows or has reason to believe is or has
       been an illicit trafficker in any such controlled
       substance or is or has been a knowing assister,
       abettor, conspirator, or colluder with others in the
       illicit trafficking in any such controlled substance,
       is inadmissible.

We therefore express no opinion on how that provision would
apply in this case.

                                9
       (ii) the judge has ordered some form of
       punishment, penalty or restraint on the alien’s
       liberty to be imposed.

In reaching its decision, the agency relied heavily upon a Board
of Immigration Appeals (“BIA”) decision, In re Roldan, 22 I. &
N. Dec. 512 (B.I.A. 1999), in which the agency had held that
“an alien is considered convicted for immigration purposes upon
the initial satisfaction of the requirements of [8 U.S.C. §
1101(a)(48)(A)] and that he remains convicted notwithstanding
a subsequent state action purporting to erase all evidence of the
original determination of guilt through a rehabilitative
procedure.” Roldan, 22 I. & N. Dec. at 523. The Newark
District Director certified his decision to the Associate
Commissioner for Examinations; the Associate Commissioner
affirmed on June 28, 2001. The INS Office of Administrative
Appeals affirmed on July 25, 2002.

                               C.

       On December 31, 2003, Pinho and his wife filed a
complaint in District Court seeking a declaratory judgment that
the denial of his adjustment of status was arbitrary, capricious
and unlawful because his vacated state conviction should no
longer be a bar to his eligibility for adjustment.5

       5
        On June 30, 2004, and in the context of the previously
filed action, Pinho filed a motion for injunctive relief, seeking
an order directing the Newark office to grant him an
employment authorization form, which was required by New
Jersey for renewal of his driver’s license. Pinho argued that

                               10
        Pinho’s argument in the District Court hinged on the
status of his conviction under 8 U.S.C. § 1101(a)(48)(A). The
BIA interprets § 1101(a)(48)(A) to draw a distinction between
convictions vacated because of the immigrant’s subsequent
participation in a rehabilitation program, and convictions
vacated because of underlying substantive or constitutional
defects. See In re Pickering, 23 I. & N. Dec. 621 (B.I.A. 2003).
Pinho argued that his conviction had been vacated in settlement
of his ineffective assistance of counsel claim, rather than as part
of a rehabilitation program. Pinho relied largely on three cases:
Herrera-Iniro v. INS, 208 F.3d 299 (1st Cir. 2000), In re
Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (B.I.A. 2000), and
Pickering, 23 I. & N. Dec. at 621.

       In Herrera-Iniro, an immigrant argued that his prior
conviction should not be operative for immigration purposes,
although he conceded that it had been vacated through a


denial of the authorization form was contrary to the applicable
regulation governing eligibility, 8 C.F.R. § 274a.12(c)(9). The
parties agree that the employment authorization has been
granted, mooting any injunctive relief we might order. See
Letter from Thomas E. Moseley to Marcia Waldron, Clerk of
the Court, United States Court of Appeals for the Third Circuit,
Sep. 9, 2005; letter from Christopher J. Christie, United States
Attorney for the District of New Jersey, to Marcia Waldron,
Clerk of the Court, United States Court of Appeals for the Third
Circuit, Sep. 9, 2005. We therefore do not have properly before
us the question of whether the agency violated 8 C.F.R.
§ 274a.12(c)(9) when it denied his application for employment
authorization.

                                11
rehabilitative program. The court reviewed the legislative
history of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,
110 Stat. 3009-546 (1996), and rejected the argument, noting
that “[t]he 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.” Herrera-
Iniro, 208 F.3d at 306 (emphasis added).

        In Rodriguez-Ruiz, decided a few months after Herrera-
Iniro, the BIA suspended the termination proceedings of an
immigrant who had pleaded guilty to a charge of sexual abuse
under New York law. Months after the plea, the court that had
entered the plea entered an order explicitly vacating it; its order
stated:

       It is ORDERED, that pursuant to CPL 440,[6] the
       judgment had in this Court on March 24, 1999
       based upon a plea colloquy . . . convicting said
       Defendant of the crime of Sexual Abuse 3rd and
       the sentence of one (1) year probation are in all
       respects vacated, on the legal merits, as if said
       conviction had never occurred and the matter is
       restored to the docket for further proceedings.




       6
       Article 440 of the New York Criminal Procedure Law,
N.Y. Crim. Proc. Law § 440, pertains to post-judgment motions.

                                12
Rodriguez-Ruiz, 22 I. & N. Dec. at 1379. The government
argued that this was merely a Roldan situation; the BIA
disagreed:

       [W]e find that the order of the New York court
       does not constitute a state action which purports
       to expunge, dismiss, cancel, vacate, discharge, or
       otherwise remove a guilty plea or other record of
       guilt or conviction by operation of a state
       rehabilitative statute. The New York criminal
       law provision under which the respondent’s
       conviction was vacated is neither an expungement
       statute nor a rehabilitative statute.

Id. at 1379-80 (internal citation omitted) (emphasis added).7

       Finally, in Matter of Pickering, 23 I. & N. Dec. 621
(B.I.A. 2003), the BIA explicitly endorsed the distinction
suggested in Herrera-Iniro. After reviewing the existing legal
landscape, the BIA held:

       In accord with the federal court opinions applying
       the definition of a conviction at section
       101(a)(48)(A) of the Act, we find that there is a
       significant distinction between convictions
       vacated on the basis of a procedural or substantive

       7
       The BIA refused, as the government urged, to “go
behind” the state court judgment and question whether the state
court had followed its own laws in entering the vacatur.
Rodriguez-Ruiz, 22 I. & N. Dec. at 1379.

                               13
       defect in the underlying proceedings and those
       vacated because of post-conviction events, such
       as rehabilitation or immigration hardships. Thus,
       if a court with jurisdiction vacates a conviction
       based on a defect in the underlying criminal
       proceedings, the respondent no longer has a
       “conviction” within the meaning of section
       101(a)(48)(A). If, however, a court vacates a
       conviction for reasons unrelated to the merits of
       the underlying criminal proceedings, the
       respondent remains “convicted” for immigration
       purposes.

Pickering, 23 I. & N. Dec. at 624.

       The District Court deemed Pinho’s vacated conviction a
“conviction” for immigration purposes, reasoning that “Pinho
pled guilty in 1992, served his sentence and now asks this Court
to ignore Congressional intent and case law to order the
[Department of Homeland Security] to grant him an
employment authorization form. Based on these facts, this
Court cannot grant [Pinho’s] request.” Pinho v. Ashcroft, No.
03cv6232, at 11 (D.N.J. Aug. 9, 2004). Expressing its suspicion
that Pinho’s ineffective assistance claim was simply an attempt
to engineer a better position on his adjustment of status
application, the District Court granted the government’s motion
for summary judgment, and Pinho appealed.

                              II.




                              14
        Neither the parties nor the District Court questioned
whether jurisdiction existed in that court, so we must therefore
consider the question anew. See Soltane v. Immigration and
Naturalization Service, 381 F.3d 143 (2004) (“[W]e are required
to consider the issue of subject matter jurisdiction, even though
neither party contends that it is lacking here.”) (citing Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). The
agency decision at issue here was made by the Bureau of
Immigration and Customs Enforcement (“BICE”)8 Newark
District Office, and affirmed by the BICE Administrative
Appeals Office (“AAO”). There was no hearing before an
Immigration Judge (“IJ”), and no appeal to the BIA. We must
ascertain whether the District Court had jurisdiction to review
a decision by the AAO in these circumstances, and if so,
whether it had jurisdiction to review this particular decision.
We hold that on these facts the District Court had jurisdiction
under 28 U.S.C. § 1331 and Section 704 of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 704, to review the AAO’s
determination of Pinho’s statutory eligibility for adjustment of
status.

       8
        On March 1, 2003, the INS’s functions were transferred
to the Bureau of Immigration and Customs Enforcement
(“BICE”) and the U.S. Customs and Immigration Service
(“USCIS”) of the United States Department of Homeland
Security (“DHS”). See Knapik v. Ashcroft, 384 F.3d 84, 86 n.2
(3d Cir. 2004) (citing Homeland Security Act of 2002, Pub. L.
No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, codified at 6
U.S.C. §§ 251, 271 & 291). Faced with this profusion of
administrative bodies, we will adopt “the agency” as shorthand
for the DHS and its sub-units.

                                15
        To support APA jurisdiction, the agency action must be
final, it must adversely affect the party seeking review, and it
must be non-discretionary.9 We consider these requirements in
turn.

        Jurisdiction under the APA is available for review of
“final agency action.” The Supreme Court has explained the
finality requirement as follows:

       As a general matter, two conditions must be
       satisfied for agency action to be “final”: First, the
       action must mark the “consummation” of the
       agency’s decisionmaking process, Chicago &
       Southern Air Lines, Inc. v. Waterman S. S. Corp.,
       333 U.S. 103, 113, 92 L. Ed. 568, 68 S. Ct. 431
       (1948)--it must not be of a merely tentative or
       interlocutory nature. And second, the action must
       be one by which “rights or obligations have been
       determined,” or from which “legal consequences
       will flow,” Port of Boston Marine Terminal Assn.
       v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,
       71, 27 L. Ed. 2d 203, 91 S. Ct. 203 (1970).

Bennett v. Spear, 520 U.S. 154, 178 (1997). The agency action
at issue here satisfies these two conditions.


       9
        Section 1252(a)(2)(B) of Title 8 of the United States
Code, which also strips the district courts of jurisdiction over
discretionary agency determinations, is in that respect at least
partly duplicative of the APA requirement.

                                16
        Finality requires exhaustion of administrative remedies.
If there remain steps that the immigrant can take to have an
action reviewed within the agency, then the action is not final
and judicial review is premature. In this case, the agency
offered no further procedures that Pinho could invoke to have
his claim of statutory eligibility heard. There is no provision for
BIA review of an AAO status-adjustment eligibility decision.
See 8 CFR § 3.1(b). If the agency institutes removal
proceedings against an immigrant, then the immigrant may
renew his or her application during those proceedings, 8 C.F.R.
§ 245.2, but we do not find this possibility sufficient to render
the AAO’s eligibility determination “tentative or interlocutory”
in this case.

       The reason is simple: if the agency does not seek to
deport the immigrant, there can never be an appeal within the
agency by which any higher level of administrative authority
can be invoked to review the legal determination made by the
AAO. Because applications for adjustment of status can be
renewed, and are often made in the first instance, during
deportation proceedings, those proceedings will in some cases
address the issues considered by the AAO, see, e.g., Herrera-
Inirio v. INS, 208 F.3d 299, 303 (1st Cir. 2000) (question
whether vacated conviction constituted “conviction” under §
1011(a)(48)(A) addressed during deportation hearing), so that
judicial review would be barred, see, e.g., Howell v. INS, 72
F.3d 288, 293 (2d Cir. 1995) (finding jurisdiction lacking once
deportation proceedings had begun).10 However, in this case,

       10
         The cursory treatment of exhaustion by the Seventh
Circuit in McBrearty v. Perryman, 212 F.3d 985 (7th Cir. 2000),

                                17
Pinho’s adjustment of status application was not filed because
of pending deportation proceedings, but rather because of his
marriage to a U.S. citizen. Because the Department of


is not on point. In that case, the plaintiffs “sought judicial
review of the refusal by the district director of the immigration
service to adjust their status. . . .” Id. at 986 (emphasis added).
The Seventh Circuit dismissed the complaint for want of
jurisdiction on the ground that “[t]he suit was premature, since,
as the plaintiffs acknowledge, they could obtain review of the
district director’s decision by the Board of Immigration Appeals
if and when the immigration service institutes removal (i.e.
deportation) proceedings against them. They have thus failed to
exhaust their administrative remedies.” Id. (internal citation
omitted). But the Seventh Circuit confuses the existence of a
claim with the exhaustion of administrative remedies. The
McBrearty plaintiffs were not challenging a legal determination
of their statutory eligibility for adjustment, but rather a refusal
to adjust their status. This distinction makes all the difference.
The refusal to adjust – a discretionary determination – was (as
the court notes) barred by § 1252(a)(2)(B). While it is true that
the plaintiffs could have renewed their adjustment application in
removal proceedings, that fact is irrelevant to the District
Court’s lack of jurisdiction: under Section 1252(a)(2)(B) the
court had no jurisdiction because the plaintiffs had no claim at
all, not because they had failed to exhaust a valid claim.
McBrearty is not about exhaustion, and is redeemed from
making law without proper analysis only by its facts; it surely
cannot be said to stand for the proposition that immigrants
stating a legal claim – one not barred by § 1252 – must always
wait for deportation proceedings.

                                18
Homeland Security (“DHS”) did not provide an avenue for
administrative appeal of the AAO decision, Pinho had no further
opportunity to challenge the legality of the decision within the
agency, and would have none at all, were he forced to await
deportation proceedings that the agency may or may not choose
to institute. In Howell, the Second Circuit left open the question
of jurisdiction where there were no pending deportation
proceedings in which the immigrant could raise her adjustment
claims. Subsequently, the district court in Chen v. Reno, 1997
U.S. Dist. LEXIS 8072 (S.D.N.Y. 1997), was faced with that
question – the question we are faced with in this case. In Chen,
the District Court found that jurisdiction did lie, explaining:

       A litigant has a right to a prompt resolution of
       decisions concerning his status affording him the
       opportunity to make personal, educational, or
       career plans. . . . Chen has exhausted his
       administrative remedies because as a denied
       applicant not in deportation proceedings, he has
       no further options under the regulatory or
       statutory scheme to force a prompt decision by the
       INS.

Id. at *6-7.

        In our view, Chen is a proper application of the guidance
given by the Supreme Court in Darby v. Cisneros, 509 U.S. 137
(1993), and McCarthy v. Madigan, 503 U.S. 140 (1992). Darby
held that agency action is final when the “aggrieved party has
exhausted all administrative remedies expressly prescribed by
statute or agency rule. . . . [W]here the APA applies, an appeal

                               19
to ‘superior agency authority’ is a prerequisite to judicial review
only when expressly required by statute or when an
administrative rule requires appeal before review and the
administrative action is made inoperative pending that review.”
Darby, 509 U.S. at 154. In the case at bar, not only was there no
administrative remedy “expressly prescribed,” but the applicable
regulation expressly provided that there was no administrative
appeal available. And the AAO’s decision was “operative”
from the moment it was entered. A ruling that Pinho must wait
for possible future deportation proceedings in order to challenge
the AAO’s legal determination would sit ill at ease with Darby.

        We hold that an AAO decision is final where there are no
deportation proceedings pending in which the decision might be
reopened or challenged. But even if the possibility of renewing
an adjustment application in future deportation proceedings
were thought to cast doubt on the finality of an AAO decision,
this case falls into one of the categories “in which the interests
of the individual weigh heavily against requiring administrative
exhaustion,” McCarthy, 503 U.S. at 146, namely, circumstances
in which an “indefinite timeframe for administrative action,” id.
at 147, results in prejudice to the individual who must await that
action. The decision whether or not to institute deportation
proceedings is entirely within the discretion of the agency.
There are no steps that Pinho can take to force the question in
order to have his claim resolved. If the only route to the courts
is through deportation proceedings, then the agency retains sole
control over whether an individual’s purely legal claim – one
which has not been made non-reviewable by statute – may ever




                                20
be brought before the courts.11 Such a result would be plainly
at odds not only with the APA, but also with broader principles
of separation of powers.12

       11
          The Fifth Circuit, in Cardoso v. Reno, 216 F.3d 512
(5th Cir. 2000), held that denials of adjustment of status may
reach the courts only through review of deportation proceedings.
Because the court did not attempt to distinguish between denials
of adjustment of status applications, and legal determinations of
eligibility for status adjustment, it is not clear whether the
Cardoso holding has much to do with the case at hand here. In
Cardoso, the court considered three separate jurisdictional
dismissals of immigration claims. One of them involved a claim
that an application for adjustment of status had been wrongly
denied as a matter of law. The applicant had filed for
adjustment prior to her twenty-first birthday. However, the
agency did not rule on the application for three years, at which
point it denied the application on the grounds that the applicant
was no longer eligible because she was no longer a minor. Id.
at 514. The court held that the applicant could not invoke
judicial review because the agency decision was not final,
although it conceded that there were no deportation proceedings
pending against the applicant. Id. at 518. We think it important
as a matter of administrative law to distinguish between
(reviewable) non-discretionary legal determinations, and (non-
reviewable) discretionary determinations. Because the Fifth
Circuit did not do so, we cannot tell with certainty whether we
are in conflict on the question resolved in this case.
       12
       See, e.g., Cynthia R. Farina, Statutory Interpretation
and the Balance of Power in the Administrative State, 89

                               21
       It is also apparent that legal consequences flow directly
from the determination that Pinho was not eligible for
adjustment of status because of his prior conviction. In addition
to the ineligibility determination itself, which prevented him
from being considered for adjustment, the AAO’s ruling had as
a direct result the subsequent denial by the District Office of
Pinho’s application for employment authorization. That
authorization was required, inter alia, for the renewal of Pinho’s
driver’s license and for his continued employment. Both the
agency’s obligations – to consider Pinho’s application for
adjustment – and Pinho’s rights – to be considered for
adjustment, and to renew his driver’s license – were determined
by the AAO’s ruling. The determination itself and the denial of
the employment authorization are clear adverse effects, and raise
the possibility that Pinho “may suffer irreparable harm if unable
to secure immediate judicial consideration of his claim,”


Colum. L. Rev. 452, 495-96 (1989) (“By the time of the
ratification, the prevailing understanding of separation of
powers was no longer a simplistic call for absolute segregation
of conceptually distinct functions. The experience between
independence and the Constitutional Convention had caused
American political theorists to rethink the nature of
governmental authority. They came to conclude that . . . all
power in government shared the same fundamental quality: it
was dangerous unless adequately offset and controlled. And so
. . . the words ‘separation of powers’ came to connote something
far more subtle and intricate than a mere, abstractly logical
division. The phrase expressed the expectation that, through the
carefully orchestrated disposition and sharing of authority,
restraint would be found in power counterbalancing power.”).

                               22
McCarthy, 503 U.S. at 147, if he is prohibited from driving or
working while awaiting the uncertain possibility of future
agency proceedings.

        We must also ask whether the action at issue here was
discretionary. It is important to distinguish carefully between a
denial of an application to adjust status, and a determination that
an immigrant is legally ineligible for adjustment of status. This
distinction is central to the question of subject-matter
jurisdiction, and is easy to elide. Indeed, such distinctions are
crucial to administrative law generally; the framework of
judicial review of agency action that has evolved over the past
half-century is grounded in a sharp distinction between
decisions committed to agency discretion, and decisions,
whether “ministerial” or “purely legal,” governed directly by the
applicable statute or regulation. See, e.g., Norton v. Southern
Utah Wilderness Alliance, 542 U.S. 55 (2004); Webster v. Doe,
486 U.S. 592 (1988). Whatever the label, our caselaw
distinguishes between actions which an agency official may
freely decide to take or not to take, and those which he is
obligated by law to take or not to take. In the case of adjustment
of status, an eligible immigrant may have his application denied
within the discretion of the agency. But the immigrant’s
eligibility itself is determined by statute. To treat all denials of
adjustment as discretionary, even when based on eligibility
determinations that are plainly matters of law, is to
fundamentally misunderstand the relationship between the
executive and the judiciary.

      In Soltane, 381 F.3d at 143, we considered the question
whether an AAO determination of statutory eligibility for a

                                23
particular immigration classification is discretionary. We held
that it is not. In that case, Camphill Soltane, a non-profit
organization filed a petition on behalf of an employee for
classification as a special religious worker. The District Office
denied the petition, and Soltane appealed to the AAO, which
affirmed the District Office. Soltane then sought review of the
AAO decision in district court. We held that, under the APA
and 8 U.S.C. § 1252(a)(B)(ii), review of AAO decisions is
within the jurisdiction of the district court so long as those
decisions are not committed to agency discretion, and that the
determination of whether Soltane met the specific eligibility
criteria set out in the governing statute was not discretionary.
Soltane, 381 F.3d at 147-48. Since Soltane, the REAL ID Act,
Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), has further
restricted the jurisdiction of the district courts to review
discretionary agency actions. Non-discretionary actions,
however, and purely legal determinations made by the agency,
remain subject to judicial review. See, e.g., Sepulveda v.
Gonzales, 407 F.3d 59, 63 (2d Cir. 2005)
(“[Section]1252(a)(2)(B) does not bar judicial review of
nondiscretionary, or purely legal, decisions. . . .”).

        Determination of eligibility for adjustment of status –
unlike the granting of adjustment itself – is a purely legal
question and does not implicate agency discretion. The
determination at issue here, whether a prior conviction precludes
eligibility for adjustment of status, was also at issue in
Sepulveda. In that case, the Second Circuit held that statutory
restrictions on the jurisdiction of district courts to hear
challenges to removal orders and other discretionary actions do
not affect the district courts’ “jurisdiction to determine whether

                               24
[the statutory provision] is applicable, e.g., whether the
petitioner is in fact an alien, whether he has in fact been
convicted, and whether his offense is one that is within the
scope of [one of the enumerated sections].” Sepulveda, 407
F.3d at 63 (citing Santos-Salazar v. U.S. Dep’t of Justice, 400
F.3d 99, 104 (2d Cir. 2005)). The determination at issue here is
precisely such a determination: whether under the applicable
statutory language as interpreted by the BIA, Pinho was
“convicted” so as to render him ineligible for adjustment of
status. This is a legal question, not one committed to agency
discretion.

       The agency action at issue here was final and non-
discretionary, it adversely affected Pinho, and it has not been
made non-reviewable by statute. Under the APA, therefore,
Pinho is “entitled to judicial review” of the AAO’s decision.13

      Because the District Court had jurisdiction to review the
AAO decision, we have jurisdiction over this appeal under 28
U.S.C § 1291. We exercise plenary review of the District
Court’s statutory interpretation, but afford deference to a
reasonable interpretation adopted by the agency. See Acosta v.
Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003). It is the agency’s
burden, however, to establish the facts supporting

       13
         Having concluded that jurisdiction exists under the
APA, we think it inadvisable to speculate, in the absence of
briefing, about alternative jurisdictional avenues by which AAO
decisions might be reviewed. We will await cases which in
which the parties contest jurisdiction and put the issue squarely
before us.

                               25
inadmissibility “by clear, unequivocal and convincing
evidence.” See Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.
2001).

       The question before us is whether the terms of the order
vacating Pinho’s 1992 conviction were such as to remove that
conviction from the scope of 8 U.S.C. § 1101(a)(48)(A), which,
in conjunction with 8 U.S.C. § 1182(a)(2)(A), governs the
admissibility of aliens to the United States.

                               III.

                               A.

       When the Immigration and Nationality Act was first
passed, it lacked a definition of the term “conviction.” The INS
relied on state law in determining whether an immigrant was
“convicted.” See Roldan, 22 I. & N. Dec. at 514-15. State
convictions that were subsequently vacated were accordingly
not treated as “convictions” for immigration purposes. The
agency was increasingly bedeviled by the diversity of state
rehabilitative programs and the resulting difficulty in fashioning
a uniform national immigration policy with respect to prior
convictions. In In re Ozkok, 19 I. & N. Dec. 546 (B.I.A. 1988),
the BIA adopted a three-part definition of “conviction for the
express purpose of evaluating diverse state rehabilitative
programs by a common measure.

       When Congress included a definition of “conviction” in
the 1996 amendments to the INA, it used, almost verbatim, the



                               26
first two parts of the Ozkok test. The statutory definition
provides in its entirety:

       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.

8 U.S.C. § 1101(a)(48)(A).14

      The new definition is disjunctive, encompassing at least
two possible procedural contexts. The first disjunct is “a formal
judgment of guilt of the alien entered by a court.” The meaning

       14
          See Ozkok, 19 I. & N. Dec. at 551-52. The third part of
the test, which was omitted from the statutory definition, dealt
with pre-judgment probation, and provided that such probation
would be sufficient for a “conviction” if “a judgment of
conviction or adjudication of guilt may be entered if the person
violates the terms of the probation . . .” Id. at 552.

                               27
of this clause is plain enough, echoing as it does the dictionary
definition, see Webster’s Third New International Dictionary at
499 (“. . . the act of proving, finding, or adjudging a person
guilty of an offense or crime.”), and thus offers no solution to
the problem of withheld judgments. That job is handled by the
second disjunct – those situations in which “adjudication of guilt
has been withheld.” “Withhold” means “. . . to desist or refrain
from granting . . . to keep in one’s possession or control.”
Webster’s Third New International Dictionary at 2627. The
definition provides that in situations in which the judge refrains
from granting a judgment of conviction, the defendant will
nonetheless stand “convicted” for immigration purposes if he
has pleaded or been found guilty or admitted sufficient facts to
support a finding of guilt, and the judge has imposed some
penalty upon him. In our recent decision in Acosta v. Ashcroft,
341 F.3d 218 (3d Cir. 2003), we considered whether the
definition covered a defendant who pleaded nolo contendere and
completed a period of probation, and whose indictment was
subsequently dismissed. We accepted the BIA’s position, as set
forth in Roldan, 22 I. & N. Dec. 512, that the new definition
requires treating a person in that situation as “convicted.”

        Section 1101(a)(48)(A), thus, by its terms and by the
BIA’s interpretation, plainly encompasses at least those
situations in which an alien has a judgment of guilt entered by
a court, and those in which the judgment of guilt was never
entered because it was withheld, but where the alien has pleaded
or admitted sufficient facts, and some penalty was imposed.
There remains the question of how the statute applies to




                               28
convictions that are imposed but subsequently vacated.15 We
have not had occasion to review the agency’s interpretation of
§ 1101(a)(48)(A) with respect to vacated convictions, or with
respect to distinctions among vacated convictions.

       Nothing in the statute specifically addresses vacated
convictions. Clearly they are not convictions that have been
withheld. If they are covered, then, it will be under the first
disjunct: “a formal judgment of guilt of the alien entered by a
court.” Undoubtedly a conviction that is later vacated by a court
must have been initially entered by a court. The statute is
entirely silent with respect to the subsequent procedural history
of a “judgment entered by a court,” and the undoubted
congressional purpose of closing the “withheld judgment”
loophole tells us nothing whatsoever about what Congress’s
purpose was with respect to vacaturs, or whether it had any
purpose at all in that regard.16

       15
          For our purposes here, we will treat the terms “vacated”
and “expunged,” which appear variously in the BIA opinions, as
synonymous. The salient procedural situation is one in which
a conviction is voided or invalidated, “dismiss[ed], cancel[ed]
. . . discharge[d] or otherwise remove[d],” Sandoval v. I.N.S.,
240 F.3d 577, 583 (7th Cir. 2001), whatever the label, and
whatever the subsequent availability of the record of the
conviction.
       16
        Cf. Acosta, 341 F.3d at 226 n.6 (“[W]e infer a
congressional intent not to incorporate . . . a distinction
[“between rehabilitative statutes that defer[] adjudication and
those which expunge[] a prior admission or adjudication of

                               29
        The statutory provision governing inadmissibility, 8
U.S.C. §1182(a)(2)(A), provides that “any alien convicted of, or
who admits committing acts which constitute the essential
elements of . . . a violation of . . . any law or regulation of a
State . . . is inadmissible.”17 However broad that language may
appear, the agencies charged with implementing the statute have
never read it to state a blanket deportability rule. The BIA’s
current interpretation distinguishes between what we may call
“rehabilitative” vacaturs and “substantive” vacaturs. The
agency’s position is that

       if a court with jurisdiction vacates a conviction
       based on a defect in the underlying criminal
       proceedings, the respondent no longer has a
       “conviction” within the meaning of section
       101(a)(48)(A). If, however, a court vacates a
       conviction for reasons unrelated to the merits of
       the underlying criminal proceedings, the



guilt”] 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).”
       17
         It is conceivable, of course, that under § 1182(a)(2)(A)
an immigrant might have admitted committing the relevant acts
even where the § 1101(a)(48)(A) definition of “conviction” does
not encompass the circumstances of his conviction. We need
not decide this question here, because in this case, the admission
and the guilty plea are one and the same. Had he been admitted
to the PTI program, he need not have admitted anything.

                               30
       respondent remains “convicted” for immigration
       purposes.

Pickering, 23 I. & N. Dec. at 624.

       The BIA, in the cases leading up to Pickering, was faced
with applying the new definition to three distinct sets of
circumstances. The easy cases are those like Roldan, in which
the judgment of guilt is never entered, but is withheld pending
completion of a rehabilitative program. These cases are
straightforwardly covered by the statutory definition, and
Roldan breaks no new ground. The second category are cases
in which a judgment is entered, but later vacated explicitly in
order to prevent deportation or other federal immigration
consequences. Pickering considered this type of case, and held
the conviction to remain in force under the definition. The third
category are cases in which a judgment is entered, but later
vacated because of substantive defects in the initial proceeding.
Rodriguez-Ruiz was such a case, and the BIA held the
conviction not to fall within the scope of the definition.

        The BIA, in short, interprets §§ 1148 and 1182 to create
a distinction between vacated convictions based on the reasons
for the vacatur. We have not yet decided whether the distinction
drawn by the agency between rehabilitative and substantive
vacaturs is a reasonable one in light of the statutory language,18

       18
         Our decision in Acosta pertains only to deferred
judgments; as we noted, the “charges against [Acosta] were
ultimately dismissed without any adjudication of guilt.” 341
F.3d at 221.

                               31
nor have we decided – as we must in this case – how we, and the
agency, are to tell the difference.

                                 B.

        We will not disturb an agency’s settled, authoritative
interpretation of a statute it is charged with implementing unless
that interpretation is plainly unreasonable in light of the plain
language of the statute taken as a whole. Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984);
United States v. Mead Corp., 533 U.S. 218, 229-32 (2001). The
most comprehensive explanation of the agency’s interpretation
is found in Roldan, 22 I. & N. Dec. at 515-20. Relying on the
joint conference report, the BIA noted the “Congressional intent
that even in cases where adjudication is ‘deferred,’ the original
finding or confession of guilt is sufficient to establish a
‘conviction’ for purposes of the immigration laws.” Roldan, 22
I. & N. Dec. at 518 (quoting H.R. Conf. Rep. No. 104-828, at
224 (1996)). The BIA then analogized from deferred
adjudications to vacated convictions, and discerned a “clear
indication that Congress intends that the determination of
whether an alien is convicted for immigration purposes be fixed
at the time of the original determination of guilt, coupled with
the imposition of some punishment.” Roldan, 22 I. & N. Dec.
at 521. The statute, of course, says nothing about vacated
convictions. Still less does the statute, or the legislative history,
address the distinction between rehabilitative and substantive
vacaturs. Nor, finally, was the question of vacated convictions
properly before the BIA in Roldan: Roldan’s judgment was
deferred, not vacated. Nonetheless, the BIA opined that “it
simply would defy logic for us, in a case concerning a

                                 32
conviction in a state which effects rehabilitation through the
technical erasure of the record of conviction, to provide greater
deference to that state’s determination that a conviction no
longer exists [than to a state which “never considered him
convicted”].” Roldan, 22 I. & N. Dec. at 521. By this
inference, the BIA corralled within § 1101(a)(48)(A) all post-
conviction expungement procedures that are analogous to
withholding judgment.19 This analogy paves the road from
Roldan to Pickering. We find the BIA’s logic not unreasonable:
to parse the difference between those past determinations of
guilt declared “no longer to exist” and those declared “never to




       19
        Some commentators have pointed out that state-deferred
adjudications and state expungement statutes “are like apples
and oranges,” because while an expungement is a state’s final
determination of a person’s legal status, “[d]eferring
adjudication of guilt . . . simply represents an initial step that
may [or may not] lead to formal expungement.” James A. R.
Nafziger & Michael Yimesgen, The Effect of Expungement on
Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930
(2003). It is certainly true that deferred judgments and
expungements are different, and it may well be that a sound
immigration policy would take that difference into account, but
we do not sit in judgment of the soundness of immigration
policy: the question before us is simply whether the language
of § 1101(a)(48)(A) may reasonably be read by the agency as
encompassing both.

                               33
have existed” is to follow the rabbit into a metaphysical hole
where courts rightly fear to tread.20

      Roldan’s holding is expressly limited to convictions
vacated under “rehabilitative procedure[s]”; the BIA
emphasized that its decision

       does not address the situation where the alien has
       had his or her conviction vacated by a state court
       on direct appeal, wherein the court determines
       that vacation of the conviction is warranted on the
       merits, or on grounds relating to a violation of a
       fundamental statutory or constitutional right in the
       underlying criminal proceedings.

Roldan, 22 I. & N. Dec. at 523. In Rodriguez-Ruiz, the BIA
takes it as given that such a vacated conviction would not be a
conviction under § 1101(a)(48)(A). There was little need to
explain that assumption, because the INS did not argue
otherwise, contending only that the vacatur at issue was not
“warranted on the merits.”


       20
          This is the jurisprudential cousin of the “grandfather”
time-travel hypothetical: would it be possible to go back in time
and murder one’s own grandfather? Does a court – even one of
general jurisdiction – have the power to declare that an earlier
event never happened? See, e.g., Hon. Leon R. Yankwich, The
Federal Penal System, 10 F.R.D. 539, 555 (1950) (suggesting
that following expungement, a person can “claim truthfully that
he has never been convicted of a felony”).

                               34
        The distinction between substantive and rehabilitative
vacaturs is rooted in the history of immigration enforcement.
That history is relevant both to our review of the reasonableness
of the agency interpretation of the statute, because the statutory
language was adopted against the background of consistent
agency practice with respect to vacated convictions. The BIA
held as early as 1943 that an expunged conviction was not a
“conviction” for immigration purposes, and adhered to that
position with only occasional exceptions until Roldan. See In re
V–, No. 56033/701 (B.I.A. 1943); In re D–, 7 I. & N. Dec. 670,
674 (1958) (where a conviction has been expunged, “there has,
as a matter of law, been no conviction for immigration
purposes”); In re G–, 9 I. & N. Dec. 159, 169 (B.I.A. 1960)
(Attorney General’s opinion) (“Pino v. Landon [349 U.S. 1
(1959) (per curiam reversal of First Circuit determination that a
vacated state conviction was a conviction for immigration
purposes)] would seem, therefore, to make it an a fortiori
conclusion in a nonnarcotics case that an expungement of an
alien’s conviction under section 1203.4 of the California Penal
Code withdraws the support of that conviction from a
deportation order under section 241(a)(4) and brings it to the
ground.”).

       The BIA, on the advice of the Attorney General, made an
exception for vacated drug offenses21 in 1959, see In re A F, 8

       21
         Lest the significance of this exception be overestimated,
we note that although Pinho’s offense was a drug offense, the
above-noted exception referred only to rehabilitative vacaturs.
Pinho’s claim, by contrast, is that his was not a rehabilitative
vacatur.

                               35
I. & N. Dec. 429 (B.I.A. 1959), and was shortly thereafter urged
to extend that exception to other types of crimes. It declined to
do so on several grounds, notably because “[t]he contrary rule
has been in effect since at least 1943 [and t]here has been no
Congressional criticism of this rule.” In re G–, 9 I. & N. Dec.
159, 163 (B.I.A. 1960). The BIA reiterated the rule – that with
the exception of drug convictions, expunged convictions are not
“convictions” – right up to the passage of the 1996 IIRIRA
amendments. In 1996, the Board held:

       We agree with the respondent that if his
       conviction has been expunged . . . he is no longer
       deportable. . . . For many years this Board has
       recognized that a criminal conviction that has
       been expunged . . . may not support an order of
       deportation. . . . However, an exception to this
       rule exists for expunged drug convictions. . . .
       Congress did not intend for aliens convicted of
       drug offenses to escape deportation on the basis
       of a state procedure authorizing a technical
       erasure of the conviction. [Drug crimes are] an
       exception to the line of cases by this Board ruling
       that a conviction which has been expunged . . .
       could not be made the basis for deportation
       proceedings. . . . However, the Attorney General
       specifically limited this exception to drug
       offenses. . . . [That exception] should not be
       extended beyond drug cases.

In re Fructoso Luviano-Rodriguez, 21 I. & N. Dec. 235, 237-
238 (B.I.A. 1996).

                               36
        After the introduction of the new statutory definition of
“conviction” in the 1996 amendments, the BIA shifted course in
Roldan, analogizing, as described above, rehabilitative vacaturs
to withheld judgments. Certainly the statutory language as
enacted closes any definitional loophole through which withheld
judgments might escape the “conviction” label. But the BIA’s
analogy to the “withheld judgment” prong of the statutory
definition pulls with it only rehabilitative vacaturs. The
“hallowed principle of precedent . . . going back over fifty
years,” James A. R. Nafziger & Michael Yimesgen, The Effect
of Expungement on Removability of Non-Citizens, 36 U. Mich.
J.L. Reform 915, 930 (2003) – that is, the government’s long
history of treating vacated convictions as nullities for
immigration purposes – was preserved for those vacaturs that
were not the functional equivalent of rehabilitative withheld
judgments – those vacaturs, in other words, that were based on
underlying defects in the conviction itself.

       The BIA has not explained precisely why it thinks
substantive vacaturs do not fit the §1101(a)(48)(A) definition.
The foregoing account, however, is sufficient to support our
determination that the distinction is reasonable.22 Given its

       22
         We do not, accordingly, read the statute as requiring
unambiguously that all convictions, even those vacated because
of substantive defects, are included in the definition. In this we
join the published opinions of at least the First, Second, and
Seventh Circuits, and depart from the Fifth Circuit. See
Herrera-Inirio v. I.N.S., 208 F.3d 299, 305 (1st Cir. 2000);
United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999);
Sandoval v. I.N.S., 240 F.3d 577, 583-84 (7th Cir. 2001);

                               37
Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 817-22 (5th Cir.
2002). In Renteria-Gonzalez, the Fifth Circuit, in holding that
a guilty plea followed by a Judicial Recommendation Against
Deportation (“JRAD”) remains a conviction for immigration
purposes, observed that “five circuits, including this court, have
concluded that a vacated or otherwise expunged state conviction
remains valid under § 1101(a)(48)(A),” 322 F.3d at 814, which
is true enough if we interpret “a” to mean “some” rather than
“all” (that is, “a vacated conviction may remain valid” as
opposed to “a vacated conviction must remain valid”). The use
of the ambiguous phrasing is misleading in this context, because
the other circuits listed, and now this Court, accept the
distinction made by the BIA between convictions which do
remain valid and convictions which do not. Indeed, in Renteria-
Gonzalez, Judge Benavides concurred specially to emphasize
that “the majority opinion paints with too broad a brush . . .
[because] 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.” 322
F. 3d at 820. Because Renteria-Gonzalez’s conviction was
likewise not vacated because of a substantive defect, Judge
Benavides continues, “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. . . .” Id. at
823 n.24.
        The breadth of Renteria-Gonzalez’s holding remains
unclear. Soon after the decision was issued, an immigration
judge cited Renteria-Gonzalez in holding that a conviction that
had been vacated due to “procedural and substantive flaws in the

                               38
underlying proceeding” remained valid under § 1101(a)(48)(A),
and the Fifth Circuit, per Judge Benavides, “reluctantly”
dismissed the petition for review, holding that, although the
circuit was now “out of step with the rest of the nation,” it was
bound by Renteria-Gonzalez. Discipio v. Ashcroft, 369 F.3d
472, 474-75 (2004). However, the Justice Department
subsequently petitioned the court to vacate Discipio and remand
the case to the BIA for dismissal. The Justice Department
argued that because § 1101(a)(48)(A) “is silent on the effect of
a vacated conviction on an alien’s immigration status, [the Fifth
Circuit] should defer to the Board’s” interpretation as set forth
in Pickering, that substantive vacaturs are not “convictions.”
Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005). The panel
agreed to remand the case, and rehearing en banc was denied as
moot, Id. at 450, leaving the precise holding of Renteria-
Gonzalez up in the air. At the very least, it is clear that to read
Renteria-Gonzalez to cover susbstantive vacaturs is to stretch it
far beyond its facts.
        Accepting the distinction between substantive and
rehabilitative vacaturs not only gives proper deference to the
agency’s interpretation, but also serves to avoid the
constitutional problems that might arise under a reading which
brings constitutionally protected conduct or constitutionally
infirm proceedings into the category of “conviction” – cases, for
example, involving an alien who was convicted of conduct
subsequently deemed constitutionally protected, or whose
conviction was reversed on direct appeal because of insufficient
evidence, or whose conviction was vacated on collateral attack
because of a plain constitutional defect. The agency does not
read the statute as encompassing such situations, however, so

                                39
longstanding, consistent practice, the agency may reasonably
read the statutory language analyzed above to authorize its
drawing this distinction among vacated convictions. We
therefore begin our analysis with the proposition that an alien
whose conviction is vacated on collateral attack because the
alien’s trial counsel was ineffective under the Sixth Amendment,
no longer stands “convicted” for immigration purposes. The
question is whether Pinho’s is such a case, and, more
importantly, how that determination is to be made.

                               C.

       We are thus faced with the question of just what the BIA
means by “based on” and “for reasons.” It is easy enough to
determine what a vacatur order is “based on” when the court
issuing the order holds a hearing and then issues a written
decision, complete with findings of fact and conclusions of law.
But not all orders come with such clear explanations. Such was
the order in the case at bar. Pinho filed a motion for post-
conviction relief, and raised ineffective assistance as his only
ground. The prosecution did not answer that motion. At the
hearing on the motion, the parties agreed that Pinho’s conviction
would be vacated, he would be placed in the PTI program, and
the charges would be dismissed. The one-sentence order of
dismissal simply cites the PTI placement.

      Facially, then, one might say that the conviction was
vacated “based on” the parties’ agreement to Pinho’s PTI
placement. After all, the words of the judge at the hearing were:


these difficult cases have not come before us.

                               40
“[S]ince Mr. Pinho has been accepted into PTI, I think the
previous judgment of conviction can be vacated.” Acceptance
into PTI is, likewise, on its face a “reason[] unrelated to the
merits of the underlying criminal proceedings.”

        But our inquiry cannot end there. The fact that the
parties agreed to settle rather than proceed to trial on the
ineffective assistance claim should not be dispositive. Indeed,
it may be that the likelihood that the prosecution will agree to a
settlement such as PTI placement will increase proportionally
with the strength of the alien’s constitutional claim. If the BIA
in Pickering had meant to require an adjudication of the merits
of aliens’ claims of substantive defects in the original conviction
in order to make out an adequate “basis,” it could have said so.
But it did not. It has instead drawn its line between vacaturs
“based on” underlying defects and vacaturs granted “for
reasons” not related to underlying defects, and it is readily
apparent that the set of vacaturs “based on” underlying defects
is not necessarily coextensive with the set of vacaturs based on
adjudications of underlying defects. We must therefore inquire
as to the reasons underlying the vacatur order, and it would
obviously be begging the question simply to invoke the PTI
acceptance yet again. The prosecutor’s offer of PTI placement
did not spring into being ex nihilo; rather, it was by way of
settlement of Pinho’s collateral attack on the constitutional
validity of his conviction. The relevant “reason,” then, for our
Pickering analysis, is plainly the reason for the settlement
agreement.

       That agreement, as the judge states at the March 10
colloquy, was the “upshot” of negotiations between the

                                41
attorneys, who “have been dealing with this matter for several
months.” The “matter” the attorneys had been “dealing with”
was Pinho’s motion for post-conviction relief based on
ineffective assistance of counsel. Of signal importance to this
case is the fact that that motion was the only pleading before the
judge. The state did not answer the motion. At no time did
Pinho, or the state, or the judge, raise any issue other than
ineffective assistance. The government asks us to hold that the
vacatur order was not “based on” the ineffective assistance
motion, even though there was no other basis for vacatur offered
at any point in the proceedings. The government asks us, in
other words, to hold that the agency may permissibly find a
motive in a state-court ruling that is nowhere stated in the
record. This we decline to do.

        At oral argument the government contended that the
motives of state prosecutors and judges might change over time
and might not be reflected in the record. Perhaps a new
prosecutor, reviewing old cases, might decide that some of his
predecessor’s policies had been unduly harsh. Perhaps such a
prosecutor, when presented with a post-conviction relief claim
brought by a defendant who had been denied entry into a pre-
trial diversion program years earlier because of a now-
discredited policy, might decide to “do the right thing,” and help
that defendant avoid the immigration consequences of his guilty
plea. Perhaps a state judge, looking at the case, would see a
hard-working family man threatened with deportation based on
a relatively minor crime committed a decade earlier, and decide
to help that hard-working family man get around the federal
immigration laws. Perhaps, perhaps. We present this
hypothetical to highlight the fact that it is precisely that: a

                               42
hypothetical proposed by the government about possible
motives of state actors nowhere found in the record. Were we
to allow the Department of Homeland Security to base its legal
determinations of immigrants’ statutory eligibility for
adjustment of status upon hypothetical scenarios such as this, we
would be opening the door to – indeed in many cases due
process would require – a flood of subpoenas to judges and
prosecutors of sovereign states ordering them to appear in
federal immigration proceedings to answer questions about
motives, feelings, and sympathies that appear nowhere in any
written record, but that may have prompted their official actions.
Behind the expansive interpretation of “reason” and “basis”
urged by the government, we see the specter of such unseemly
inquisitions.

        How else, indeed, could Pinho have challenged the
agency’s claim that the vacatur order was not “really” based on
his ineffective assistance claim? Would he not have to call the
prosecutor and ask him why, exactly, he agreed to PTI
placement? Would he not have to call the judge and ask him
why, exactly, he agreed to vacate the conviction and dismiss the
charges? And if the answers were unfavorable to the
government’s theory, would it not seek, in cross-examination,
to establish that the state actors harbored secret motives, such as
undue sympathy for an immigrant or animosity toward federal
immigration law?

       We cannot endorse a test which requires speculation
about, or scrutiny of, the reasons for judges’ actions other than




                                43
those reasons that appear on the record.23 Whether or not
constitutional avoidance requires this result,24 avoidance of
absurdities surely does. See Sheridan v. United States, 487 U.S.
392, 492 (1988) (“[C]ourts should strive to avoid attributing
absurd designs to Congress. . . .”). But most important are basic
considerations of comity. When, as in this case, there arises a
dispute over the “reason” or “basis” for a decision, if the parties
are permitted to speculate about unstated motives that perhaps
underlie vacatur orders, there will be little alternative to calling
judges and prosecutors as witnesses in immigration proceedings.

       23
         Cf. Sandoval, 240 F.3d at 583 (“The INS also alleges
that the modification [of Sandoval’s conviction] was entered
solely for immigration purposes, and is thus ineffective. This
allegation is unfounded. The judge’s modification was in
response to Sandoval’s properly filed motion stating a
cognizable claim of ineffective assistance of counsel. That
Sandoval may have filed his motion in response to the threat of
deportation is irrelevant. Further, even if the state court judge’s
decision to modify Sandoval’s sentence was motivated by the
consequences of the federal immigration law, that fact would
not render the modification ineffective for immigration
purposes.”).
       24
         For example, both judges and prosecutors enjoy
absolute immunity from damage suits and criminal prosecution
arising from their official acts. See Stump v. Sparkman, 435
U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976). It
is unclear how the principle of immunity might extend to
subpoenaed testimony about unstated motives. Our decision
today avoids this issue.

                                44
We do not deem such a prospect to be in keeping with
longstanding principles of federal respect for state decisions as
to the meaning of state law. “[T]he respect that federal courts
owe the States and the States’ procedural rules,” Coleman v.
Thompson, 501 U.S. 722, 726 (1991), is owed no less by federal
agencies than by federal courts. The Supreme Court has
repeatedly emphasized that state courts are the ultimate
authorities on the meaning of state law. Other than “a few
exceptional cases in which the Constitution imposes a duty or
confers a power on a particular branch of a State’s government,”
Bush v. Gore, 531 U.S. 98, 112 (2000), the authority of state
courts to determine state-law questions is clear: “[C]omity and
respect for federalism compel us to defer to the decisions of
state courts on issues of state law. That practice reflects our
understanding that the decisions of state courts are definitive
pronouncements of the will of the States as sovereigns.” Id.
Recognizing the force of this longstanding principle, the BIA
correctly declined the government’s invitation in Rodriguez-
Ruiz to “look behind” a state-court ruling and decide whether
that ruling was correct under state law.25            The same
considerations govern the search for unstated motives: both
contravene long-settled principles of federalism. A state law
may be declared unconstitutional; it may not, however, simply
be rewritten. So too, we hold, with vacatur orders.

       The government could have avoided this problem
altogether. As the Supreme Court has emphasized, the

       25
         We thus decline the government’s similar invitation
here to decide the ineffective assistance claim ourselves. See
Brief for Appellee, at 11-12.

                               45
definition of “conviction” for purposes of applying federal laws
is a question of federal law. Dickerson v. New Banner Institute,
Inc., 460 U.S. 103, 111-12 (1983) (“[W]hether one has been
‘convicted’ within the language of [federal] statutes is
necessarily . . . a question of federal, not state, law, despite the
fact that the predicate offense and its punishment are defined by
the law of the State.”). Further, the executive branch is entitled
to great deference in formulating immigration policy, an
“especially sensitive political function[] that implicate[s]
questions of foreign relations,” I.N.S. v. Abudu, 485 U.S. 94, 110
(1988).      Given the expansive statutory definition of
“conviction,” and the deference the agency’s interpretation is
owed, the agency could have chosen to contend that as a matter
of federal law all vacated state convictions remain “convictions”
under § 1101(a)(48)(A), whether rehabilitative or substantive.
If the agency wishes to adopt this interpretation of the statutory
definition it may do so, through rulemaking or adjudication, and
it may defend that interpretation before the courts. But the
agency has not done so, and it is another matter entirely for the
agency to distinguish among vacated convictions based on the
reasons for the vacatur, and then to arrogate to itself the power
to find hidden reasons lurking beneath the surface of the rulings
of state courts. Under the Supremacy Clause, the Department of
Homeland Security may, pursuant to statutory authority,
properly interpret § 1101 (a)(48)(A) to encompass convictions
vacated by order of state courts. But it is far from clear that it
may rewrite state-court rulings as to the legal basis for those
orders. Our Federalism has not yet come to that.

                                D.



                                46
        In this case, the District Court openly expressed its
suspicion that Pinho’s ineffective assistance motion was, sub
silentio, something else entirely. “It is troubling that [Pinho]
admitted guilt, served his sentence and then waited
approximately three years to seek post-conviction relief based
on ineffective assistance. . . .” Pinho v. Ashcroft, No. 03cv6232,
at 10 (D.N.J. Aug. 9, 2004). The District Court then turned for
guidance to an unpublished district court opinion, Lim v.
Ashcroft,26 involving similar issues, noting that “Chief Judge
Bissell shared the same concerns of this Court,” namely “that
there was no reason for the state to entertain petitioner’s post-
conviction motion for any purpose other than to benefit
petitioner before the INS or this Court. . . .” Id. at 11. The
District Court then stated explicitly that “Chief Judge Bissell’s
opinion in Lim . . . is a factor in denying Plaintiff’s motion.” Id.
The District Court’s quasi-adoption of Lim is noteworthy for
more than its procedural irregularity. In Lim the district court
accused the state judge and prosecutor of being practitioners, or
willing victims, of outright duplicity. A brief discussion of Lim
is therefore warranted here, because it is an object lesson in the
pitfalls of the government’s proposed approach.

        Lim pled guilty in New Jersey in 1996 to kidnapping; in
1998, the INS began removal proceedings. In 2001, Lim sought
postconviction relief in state court, contending that he had
received ineffective assistance of counsel, and petitioned the
district court to stay deportation pending exhaustion of the state

       26
         Lim v. Ashcroft, No. 01-CV-3271, 2002 WL 1967945
(D.N.J. 2002) (unpublished). We remind the District Court that
unpublished district court opinions are not a source of law.

                                47
claim. After the state court granted Lim post-conviction relief,
the district court took it upon itself to review the state court’s
state-law ruling,27 and declared the entire proceeding to be a

       27
         The court summarized the proceedings as follows:

       [T]he transcript shows that at the outset the court
       was presented with an arrangement in the nature
       of a plea agreement, that had been reached prior
       to the hearing between Mr. Lim and state
       authorities. Pursuant to the arrangement, the
       following actions were taken at the hearing:
       (1) the state court permitted Mr. Lim to withdraw
       his earlier plea to the kidnapping charge and enter
       a plea of guilty to a charge in the original
       indictment of aggravated assault; (2) the court
       vacated the kidnapping conviction and stated that
       the date of the new plea should be treated for
       immigration purposes as having been entered on
       March 18, 1996 (a fictitious date as far as the
       record reveals); (3) the state dismissed voluntarily
       the remaining charges; (4) the court sentenced
       Mr. Lim to time served. All agreed that the
       foregoing arrangement’s purpose was to facilitate
       Mr. Lim in avoiding deportation; by attempting to
       amend the date of conviction, Mr. Lim and his
       counsel sought to avoid the AEDPA amendment
       and preserve his eligibility for Section 212(c)
       consideration.

Lim, 2002 WL 1967945, at *3.

                               48
sham: “[T]his Court determines that there was a significantly
deficient legal foundation for the state court’s vacation of Mr.
Lim’s kidnapping conviction.” Lim, No. 01-CV-3271, at *5.
Regardless of what the state court said it found, according to the
district court, it did not “really” find ineffective assistance. The
District Court concluded that a hidden motive was at work:

       [I]n accommodating the proposed plea
       arrangement, the state court acted not on the basis
       of a meritorious claim of ineffective assistance of
       counsel, but for some other reason. . . . The [state
       court’s own] remarks unmistakably show that the
       state court vacated the kidnapping conviction out
       of concern for Mr. Lim’s immigration plight, not
       because there was any merit in his collateral
       attack on the kidnapping charge.

Id. at *9. The prosecutor and the judge were, according to the
district court, played for fools; they were made the dupes of a
conniving lawyer who “played to the[ir] interests” in
“contriv[ing] a fictional disposition . . . as a means to subvert
federal statutes.” Id. at *10. The post-conviction relief petition
was thus a fraud: “[I]t is apparent that the petition for post-
conviction relief that was pursued in this case was not used to
test the merit of Mr. Lim’s claim of ineffective assistance of
counsel, but rather as a vehicle to engineer a result that would
benefit petitioner in proceedings before the INS or this
Court. . . .” Id. at *9.

      The concern, then, that the District Court in this case
“shared” with the court in Lim is that the integrity of legal

                                49
proceedings in state courts cannot be trusted. This Court does
not approve of accusations of dishonesty or complicity in
“subversion” leveled at state courts and prosecutors. We will
not accept an interpretation of the Immigration and Nationality
Act that permits, let alone requires, speculation by federal
agencies about the secret motives of state judges and
prosecutors.

        The temptation to second-guess the motives of state
officials is a predictable byproduct of inadequate judicial
guidance as to the permissible bounds of agency inquiry into the
basis for state-court actions. The powers of immigration
officials are extensive, and if immigrants are to have any
certainty as to the effect criminal proceedings in state courts
may have on their immigration status, those bounds must be
drawn plainly and brightly. Where definitions are broad, so
must they be clear. It cannot be the case that whether a
conviction is a conviction depends on whether an immigration
official suspects a state judge of secretly harboring subversive
motives. If the relationship between state criminal proceedings
and federal immigration proceedings is to be governed by the
rule of law, then that law must be a law of rules.

        We therefore announce the following categorical test for
classification of vacated convictions under the INA.28 To
determine the basis for a vacatur order, the agency must look

       28
         Although Judge McKee agrees with the rationale and
result of our decision, he does not agree that we need to
establish a formal test to properly resolve this appeal. He
therefore does not endorse the majority’s categorical test.

                              50
first to the order itself. If the order explains the court’s reasons
for vacating the conviction, the agency’s inquiry must end there.
If the order does not give a clear statement of reasons, the
agency may look to the record before the court when the order
was issued. No other evidence of reasons may be considered.29




       29
           Our test is informed by our decisions in United States
v. Taylor, 98 F.3d 768 (3d Cir. 1996), and United States v.
Joshua, 976 F.2d 844 (3d Cir. 1992). In those cases we had to
determine how to classify a prior crime for purposes of the
Federal Sentencing Guidelines. We held that “a sentencing
court should look solely to the conduct alleged in the count of
the indictment charging the offense of conviction. . . .” Taylor,
98 F.3d at 771 (quoting Joshua, 976 F.2d at 856). Thus, to
determine whether a prior crime was a “crime of violence,” the
sentencing court could look only at the conduct alleged in the
indictment for the count which was proved or admitted. The
court could not look outside the indictment to determine whether
the defendant actually committed other acts which did not
appear in the indictment on that count.
         Our test also accords deference to the BIA’s formulation
in Pickering, which provides that “in making this determination
[of the basis for a vacatur] we look to the law under which the
. . . court issued its order and the terms of the order itself, as well
as the reasons presented by the respondent in requesting that the
court vacate the conviction.” Pickering, 23 I. & N. Dec. at 625.

                                  51
                               IV.

       Applying this rule to the case at hand is straightforward.
In his pleading, Pinho raised only one claim: ineffective
assistance of counsel. The state did not file an answer. The
judge’s vacatur order refers to the PTI placement agreement,
which was reached in settlement of Pinho’s ineffective
assistance claim. The only basis for the vacatur appearing in the
order or the pleadings is Pinho’s ineffective assistance claim.
Under the distinction articulated in Pickering, therefore, Pinho’s
conviction was vacated “based on a defect in the underlying
criminal proceedings,” and Pinho accordingly “no longer has a
‘conviction’ within the meaning of section 101(a)(48)(A).”
Pickering, 23 I. & N. Dec. at 624.

       The AAO therefore erred as a matter of law in
determining Pinho to be ineligible for adjustment of status under
§§ 1101 and 1182, and the District Court erred in affirming that
determination. We wish to emphasize that while we may, and
must, ensure that purely legal determinations are made by the
agency in accordance with law, the decision whether in fact to
grant adjustment of status is a matter entrusted to the discretion
of the agency, and we lack the power to review denials of
adjustment applications as such. When we have instructed the
agency on the correct legal standard, we have said all that we
may say. We will accordingly reverse the judgment below and
remand to the District Court for the granting of relief consistent
with this opinion.




                               52
