                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS         November 28, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                 Clerk

                              No. 03-60842

                       ))))))))))))))))))))))))))

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
                          BIA No. A74-700-798



Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

Per Curiam:*

     Petitioner Armando Gaona-Romero (“Gaona”) seeks review of a

final order of removal by the Board of Immigration Appeals

(“BIA”), entered on October 7, 2003.      Gaona raises two claims of

error: first, that the BIA erred in determining that he is

removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on the basis of

his vacated controlled substance conviction; and second, that the


     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                   1
BIA erred in determining that he is removable under 8 U.S.C.

§ 1182(a)(6)(E)(i) on the basis of his conviction for aiding and

abetting aliens to elude examination and inspection by

immigration officials.   Applying Renteria-Gonzalez v. INS, 322

F.3d 804 (5th Cir. 2003), we hold 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.    Accordingly, we DENY the petition.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Gaona is a native and citizen of Mexico who entered the

United States without inspection in 1978.    On June 5, 1997, Gaona

pleaded guilty in Texas state court to the possession of

marijuana and was fined $1000 as a result.   In 2002, after

removal proceedings had been commenced, Gaona filed a petition

for habeas corpus in Texas state court, seeking to have his

conviction overturned.   The Texas court granted the writ,

concluding that Gaona’s plea violated the federal and state

constitutions because it was not “knowingly and voluntarily

entered,” and vacated Gaona’s drug conviction.

     In 2000, Gaona was charged with transporting two illegal

aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and

§ 1324(a)(1)(A)(v)(II), and with one count of conspiracy to

transport said aliens, in violation of § 1324(a)(1)(A)(v)(I).

Gaona pleaded guilty to two counts, under 18 U.S.C. § 2 and 8


                                  2
U.S.C. § 1325(a)(2), for aiding and abetting two aliens to

“elude[] examination and inspection” by immigration officials.

     In August 2001, the United States government charged Gaona

with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being an

alien present in the United States without being properly

admitted or paroled after inspection and under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) for having been convicted of a controlled

substance offense.     In September 2002, the government charged

Gaona with removability under 8 U.S.C. § 1182(a)(6)(E)(i) for

being an alien who aided or abetted another alien in entering or

trying to enter the United States in violation of the law.

     On October 29, 2002, an immigration judge found Gaona

removable as a controlled substance offender under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) and also found that his conviction for

aiding and abetting an illegal immigrant in eluding examination

and inspection made him subject to removal under 8 U.S.C.

§ 1182(a)(6)(E)(i).1    Subsequently, the judge withdrew his finding

that Gaona was removable for his drug conviction, citing the fact

that Gaona’s conviction had been vacated.

     On appeal to the BIA, Gaona challenged the immigration

judge’s finding that he was removable under 8 U.S.C.

§ 1182(a)(6)(E)(i) due to his conviction for aiding and abetting


     1
      According to Gaona, “the Judge never required Mr. Gaona to
plead to the illegal entry charge,” “[n]or did he find in his
oral decision that Mr. Gaona was removable for that reason.”

                                   3
illegal immigrants to elude inspection.      Gaona argued that there

was a material distinction between the language of

§ 1182(a)(6)(E)(i) and the charge to which he pleaded guilty:

§ 1182(a)(6)(E)(i) provides for removal of an alien who has aided

or abetted another alien in illegal entry or attempted entry into

the United States, whereas Gaona was convicted of aiding and

abetting illegal aliens in eluding examination and inspection.

Gaona argued that the eluding of inspection might occur, and in

his case did occur, after the aliens had completed their entry

into the United States.

     In turn, the United States government appealed the

immigration judge’s finding that Gaona was not removable under 8

U.S.C. § 1182(a)(2)(A)(i)(II) on the basis of his vacated

controlled substance conviction.       The government argued that the

Texas court had exceeded its jurisdiction in granting Gaona’s

habeas petition because Gaona was not in custody and because

there was no constitutional defect in the criminal proceedings.

The government claimed that Gaona’s conviction was vacated not

because of a constitutional defect, but to avoid immigration

consequences, a distinction that is significant under the BIA’s

caselaw.   See In re Pickering, 23 I. & N. Dec. 621 (BIA 2003).

The government also argued that this court’s decision in

Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2003), mandated

a finding that Gaona’s vacated conviction remained a conviction

for immigration purposes.

                                   4
     On October 7, 2003, the BIA dismissed Gaona’s appeal,

rejecting Gaona’s claim that his conviction for helping an

illegal alien to elude examination and inspection did not render

him removable under 8 U.S.C. § 1182(a)(6)(E)(i).     The BIA

reasoned that examination and inspection are part of the entry

process.   The BIA also sustained the government’s appeal, ruling

that Gaona was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on

the basis of his drug conviction.     The BIA determined that

Gaona’s immigration proceedings arose within the jurisdiction of

the Fifth Circuit and that Renteria-Gonzalez was controlling

precedent for immigration cases in this jurisdiction.     Applying

Renteria-Gonzalez, the BIA held that Gaona’s vacated conviction

was still valid for immigration purposes, and that he was

therefore deportable under § 1182(a)(2)(A)(i)(II).     Finally, the

BIA held that either conviction rendered Gaona ineligible for

cancellation of removal.

     Gaona filed a timely petition for review in this court; we

held our review in abeyance pending the disposition of the

petition for rehearing en banc in Discipio v. Ashcroft (Discipio

I), 369 F.3d 472 (5th Cir. 2004), vacated on denial of reh’g en

banc, 417 F.3d 448 (5th Cir. 2005).

                           II. JURISDICTION

     The government proposes that this court lacks jurisdiction

to review Gaona’s final order of removal because Gaona is

removable by reason of having committed a criminal offense
                                  5
covered in 8 U.S.C. § 1182(a)(2).    See 8 U.S.C. § 1252(a)(2)(C).

The government’s argument is outdated, as its brief was submitted

before the May 31, 2005, enactment of the REAL ID Act, Pub. L.

No. 109-13, 119 Stat. 231.   8 U.S.C. § 1252(a)(2)(D), added by

the REAL ID Act, provides:

     Nothing in subparagraph (B) or (C), or in any other
     provision of this Act (other than this section) which
     limits or eliminates judicial review, shall be construed
     as precluding review of constitutional claims or
     questions of law raised upon a petition for review filed
     with an appropriate court of appeals in accordance with
     this section.

     Congress specifically stated that the provisions of

§ 1252(a)(2)(D) would take effect immediately and would apply

retroactively to cases in which the final order of removal was

issued before the date of enactment.   REAL ID Act § 106(b); see

also Ramirez-Molina v. Ziglar, 436 F.3d 508, 512 (5th Cir. 2006).

In accordance with § 1252(a)(2)(D), therefore, this court has

jurisdiction to hear questions of law raised by Gaona in a

petition that would otherwise be barred by § 1252(a)(2)(C).     See

Okafor v. Gonzales, 456 F.3d 531, 533 (5th Cir. 2006).     In his

appeal from the BIA’s determination of removability for his drug

conviction (the determination that could deprive this court of

jurisdiction under § 1252(a)(2)(C)), Gaona raises a question of

law–-whether a conviction vacated for constitutional error is

still a conviction for immigration purposes.   As a result, this

court has jurisdiction to hear Gaona’s petition.



                                 6
                      III. STANDARD OF REVIEW

     In reviewing a decision by the BIA, this court examines

questions of law de novo.    Alwan v. Ashcroft, 388 F.3d 507, 510

(5th Cir. 2004).   An agency’s interpretations of the statutes and

regulations it administers should be given deference in

accordance with Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984).    The BIA's factual conclusions are

reviewed for substantial evidence.    Ozdemir v. INS, 46 F.3d 6, 7

(5th Cir. 1994).   This court does not consider the rulings and

findings of immigration judges unless they were relied upon by

the BIA.   Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).

Here, the BIA independently examined the record and issued its

own findings.

                            IV. DISCUSSION

     We first address whether the BIA erred in determining that

Gaona is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on the

basis of his vacated controlled substance conviction.   In

Renteria-Gonzalez, this court stated that “a vacated conviction,

federal or state, remains valid for purposes of the immigration

laws.” 322 F.3d at 814.   Gaona contends that this language is

mere dicta and therefore does not control the outcome in this

case.   Gaona urges that the Fifth Circuit embrace the approach

adopted by the BIA in In re Pickering, 23 I.& N. Dec. 621 (BIA

2003), which distinguishes between convictions vacated for


                                  7
substantive or procedural error and those vacated for

rehabilitative purposes.       The BIA applies this test in cases that

arise from all jurisdictions other than the Fifth Circuit, where

it considers itself bound by Renteria-Gonzalez.         See In re

Pickering, 23 I.& N. Dec. at 624.         Gaona argues that Chevron

deference is due to the BIA’s preferred interpretation of the

statute it is charged to administer.

       It is true that the discussion in Renteria-Gonzalez swept

beyond the precise issue in that case, which concerned a federal

conviction that had been vacated by a district court to avoid the

immigration-related consequences of the conviction.        322 F.3d at

811.       In addressing that issue, the Renteria-Gonzalez majority

reasoned that § 1101(a)(48)(A), which, unlike earlier immigration

statutes, took the trouble to define “conviction,” did not

include an exception for vacated convictions.        The majority wrote

that “Congress must have anticipated the problem [of vacated

convictions], yet it chose to remain silent,” a fact which the

majority concluded “strongly implies that Congress did not intend

any such exception.”       Id. at 813.2   Thus, while the concurring

opinion in Renteria-Gonzalez characterized “any indication in the

majority opinion that a conviction vacated based on the merits

       2
      The majority also argued that the provision in 8 U.S.C.
§ 1101(a)(48)(A) of an exception for executive pardons, and not
vacated convictions, reinforced its interpretation of “conviction,”
and indicated that Congress “wanted to restrict to only the most
directly accountable officers the power to negate a conviction and
thereby block deportation.” Id.

                                     8
constitutes a conviction under [8 U.S.C.] § 1101(a)(48)(A)” as

“entirely dicta” (Id. at 823 n.24 (Benavides, J., concurring)),

the majority opinion could be read as holding that a conviction

vacated for any reason was still a conviction for immigration

purposes.

     The decisions in Discipio I and II resolve this uncertainty.

In Discipio I, which involved a state conviction vacated for

substantive and procedural reasons, the court held that it was

bound by Renteria-Gonzalez to deny Discipio’s appeal, writing

that “[u]ntil the Fifth Circuit en banc or the Supreme Court

reforms Renteria-Gonzalez, we must apply that decision as

written.”   Discipio I, 369 F.3d at 475.    In Discipio II, the

court noted that “the immigration judge presiding over

Petitioner’s removal proceeding found that the Massachusetts

conviction remained valid for immigration purposes under our

holding in [Renteria-Gonzalez]” and declared that “a panel of

this court is without authority to contradict the holding of the

previous panel in Renteria-Gonzalez.”      Discipio II, 417 F.3d at

449-50.   Discipio I and II make clear that the Fifth Circuit

deems the holding of Renteria-Gonzalez to be that all vacated

convictions remain convictions for the purposes of immigration

proceedings.

     Because Gaona’s immigration proceedings fall within the

jurisdiction of the Fifth Circuit, the BIA is bound to follow



                                 9
Renteria-Gonzalez where it applies.   We are not at liberty to

revise Renteria-Gonzalez, since in the absence of an intervening

Supreme Court decision, no subsequent panel may overrule the

decisions of another panel or limit the prior decision to the

facts set forth therein.   United States v. Smith, 354 F.3d 390,

399 (5th Cir. 2003).   Accordingly, the BIA did not err in finding

Gaona removable on the basis of his vacated controlled substance

conviction.

     Having concluded that Gaona is removable on the basis of his

vacated controlled substance conviction, we need not address

Gaona’s second contention: that the BIA erred in determining that

he is removable under 8 U.S.C. § 1182(a)(6)(E)(i) on the basis of

his conviction for aiding and abetting aliens to elude

examination and inspection.

                           V. CONCLUSION

     Because the BIA correctly applied Renteria-Gonzalez in

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

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

substance conviction, we DENY Gaona’s petition for review.

     DENIED.




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