(F)  Validity of Orders Vacating Sentence.  Pickering interpreted the statutory definition of conviction.[64]  The question of what constitutes a sentence, however, is determined under completely different statutes.[65]  Pickering confronted an order vacating a conviction, not an order reducing a sentence.  It therefore did not alter the law with respect to sentences.[66]

 

            The BIA has long held that it is the most recent sentence that governs for immigration purposes, regardless of the reason why an original sentence may have been modified.[67]  Pickering did not even mention, much less overrule, Matter of Song.  Moreover, the Ninth Circuit has recently reaffirmed this rule, even after Pickering was decided.[68]  Therefore, the most recent sentence determines the immigration consequences of sentence, regardless of the ground upon which the original sentence was vacated.  See § § 7.50, et seq., infra.

[64] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[65] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(43)(F), et al. [“sentence imposed” requirement for various aggravated felonies].

[66] See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545, n.5, 120 L.Ed.2d 305 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993).

[67] Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation).  After the 1996 legislation, the BIA reaffirmed the same rule. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (new definition of “conviction” and Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), do not alter the rule that vacating a sentence nunc pro tunc and imposing a revised sentence of less than 364 days will prevent the conviction from being considered an aggravated felony because the latest sentence controls for immigration purposes).

[68] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (government must honor discretionary order reducing felony to misdemeanor).

Third Circuit

POST CON RELIEF - EFFECTIVE ORDER - ARGUMENT THAT VACATED CONVICTIONS ARE NOT CONVICTIONS
In Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005), the Third Circuit held it was reasonable for the BIA to hold that a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes, but that convictions those vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes.  The court established a categorical test for distinguishing between these two types of vacatur: "To determine the basis for a vacatur order, the agency must first look to the order itself.  If the order explains the courts reasons for vacating the conviction, the agencys 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 entered.  No other evidence of reasons may be considered."  The court also stated: "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."  In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because "The only basis for the vacatur appearing in the order or the pleadings is Pinhos ineffective assistance claim."      The Third Circuit, however, also stated: "Given the expansive statutory definition of "conviction," and the deference the agencys 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."  (Id. at ___ [emphasis supplied]).      If counsel are faced with an argument in immigration or federal court that the statutory definition of conviction, INA 101(a)(48)(A), includes as convictions even those that have been vacated as legally invalid on constitutional grounds such as ineffective assistance of counsel, the following arguments might be a starting point.      The suggestion in Pinho that the agency could adopt an interpretation of the statute that included as convictions even those that had been vacated as legally invalid was not part of the holding of the court.  This issue was not before the court in Pinho.  The language in question is therefore dictum.  R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).).      In fact, such an interpretation is unsupportable as well as unconstitutional, and should not be adopted.  It is unsupportable because the statute and legislative history give no support to this interpretation.  Elsewhere in Pinho, the court stated: 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."   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 purpose was with respect to vacaturs, or whether it had any purpose at all in that regard.  (Id. at ___ [footnote omitted].)      Since deportation on the basis of a conviction is a drastic result, the agency is not free to create out of whole cloth a statutory interpretation that has no support in the text or legislative history of the statute. Mr. Justice Douglas, speaking for a unanimous Supreme Court, stated:
"We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10 (92 L.Ed. 17).  It is the forfeiture for misconduct of a residence in this country.  Such a forfeiture is a penalty.  To construe this statutory provision less generously to the alien might find support in logic.  But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used."  Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948).      Reiterating this principle, Chief Justice Warren has written,  "Although not penal in character, deportation statutes as a practical matter may inflict the equivalent of banishment or exile, . . . and should be strictly construed."  Barder v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825, 98 L.Ed. 1009 (1954).  While The Court of Appeal for the Ninth Circuit expressed awareness of this principle in Garcia Gonzales, saying, "We are aware, too, that matters of doubt should be resolved in favor of the alien in deportation proceedings, because of the severity of the remedy invoked."  Garcia Gonzales  v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965). See also Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. at 384 n.8 (2005) (applying rule of lenity to aggravated felony definition in deportation context).      Aside from being an unsupportable interpretation, it would probably be unconstitutional to allow the agency to attach such drastic consequences to a conviction that the law of the case had determined to be unconstitutional.  As the court recognized, elsewhere in Pinho: Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agencys 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 these difficult cases have not come before us.  Id. at ___, n. 22.      Therefore, it would be not only unsupportable but unconstitutional to include as convictions those that had been vacated as legally invalid.      The court also stated: "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."      In Pinho, the court found the state vacatur effectively eliminated the conviction for immigration purposes because "The only basis for the vacatur appearing in the order or the pleadings is Pinhos ineffective assistance claim." Suggest petition for rehearing in Pinho to eliminate the following language: "Given the expansive statutory definition of "conviction," and the deference the agencys 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." (Id. at ___ [emphasis supplied]).      The court should grant a petition for rehearing and eliminate this italicized language. This issue was not before the court in Pinho. The italicized language is therefore dictum. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)

POST CON RELIEF - CONVICTION - VACATUR CATEGORICAL ANALYSIS APPLIED TO PICKERING ISSUE
Pinho v. Gonzales, ___ F.3d ___, 2005 WL 3470037 (3d Cir. Dec. 20, 2005) (a criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes; convictions vacated because of underlying defects in the criminal proceedings are eliminated for immigration purposes; "To determine the basis for a vacatur order, the agency must first look to the order itself. If the order explains the courts reasons for vacating the conviction, the agencys 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 entered. No other evidence of reasons may be considered.")
http://www.ca3.uscourts.gov/opinarch/043837p.pdf

Fifth Circuit

[DECISION VACATED - see below] POST-CONVICTION - TEXAS - VACATED CONVICTIONS - RENTERIA
United States v. Discipio, 369 F.3d 472 (5th Cir. April 29, 2004) (following Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), state conviction remains for immigration purposes, even though convicting court granted motion for new trial based upon substantive flaws in underlying proceeding).      In United States v. Discipio, 369 F.3d 472 (5th Cir. April 29, 2004), the first published Fifth Circuit court decision to cite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (convictions vacated based upon legal invalidity of underlying proceedings remain valid for immigration purposes), the three member panel reluctantly followed the holding of Renteria-Gonzalez, but was extremely critical of the decision, calling the results of the decision "patently absurd." United States v. Discipio, at *2.      The decision of one panel of the Fifth Circuit cannot overrule the decisions of another panel, noting that "[u]ntil the Fifth Circuit en banc or the Supreme Court reforms Renteria-Gonzalez, we must apply that decision as written." Id. at *3; see United States v. Smith, 354 F.3d 390, 399 (5th Cir. 2003). Nonetheless, nearly the full length of the decision in Discipio was spent criticizing the logic and holding of Renteria-Gonzalez. The court went to far as to continue the stay of deportation for Discipio, "until the Clerk of this Court issues the mandate in this case," to prevent further consideration of the case from becoming moot. Id. The panel made no attempt to distinguish the Discipio from Renteria-Gonzalez on its facts.       The specific facts and BIA decision in this case may have had a part in setting the tone of the Discipio decision. The unpublished Board of Immigration Appeals case upon which this appeal was based, In re Discipio, A19 321 919, 2004 WL 880306 (BIA March 3, 2004) (unpublished), shows that the respondent was convicted, and apparently lived in Massachusetts. Although the respondent was initially detained by the INS in Boston, he was transferred to the detention facility at Oakdale, Louisiana, within the jurisdiction of the Fifth Circuit.      The BIA upheld the Immigration Judges denial of a motion for change of venue, stating that although the respondents family lived in Boston, their difficulty in travelling to Oakdale to attend proceedings was irrelevant, as the respondent had failed to indicate that he was going to call any of his family as witnesses. The BIA also rejected as "forum shopping" the respondents arguments that he was prejudiced by being brought under the jurisdiction of the Fifth Circuit and Renteria-Gonzalez, and that he should be subject to the law of First Circuit, as the only reason he fell under the jurisdiction of the Fifth Circuit was his transfer by the INS. Finally, the BIA stated that neither the BIA nor the Immigration Court has any jurisdiction over decisions of the INS to transfer a noncitizen from one jurisdiction to another, citing Matter of Rahman, 20 I. & N. Dec. 480 (BIA 1992); Matter of Victorino, 18 I. & N. Dec. 259 (BIA 1982); and 8 C.F.R. 1003.14(a), 1003.20(b). [DECISION VACATED] Discipio v. Ashcroft, ___ F.3d ___, 2005 WL 1635190 (5th Cir. July 13, 2005) (vacating prior panel decision, 369 F.3d 472 (5th Cir. 2004), and remanding to the BIA to allow government to terminate removal proceedings pursuant to Matter of Pickering, 23 I. & N. Dec. 621, 2003 WL 21358480 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), since the convictions in this case had been vacated on the merits on the basis of procedural and substantive defects and were thus no longer valid convictions for purposes of immigration proceedings). In short, the DHS indicated that it was going to follow Matter of Pickering, and move to terminate proceedings, despite Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir.2002) (holding that a conviction remains valid regardless of the reason it was vacated). The noncitizen Petitioners petition for rehearing en banc (which could have resulted in overruling Renteria), was therefore denied as moot. As Descipio (which was very critical of Renteria) was a panel decision only (and even though it is published), this may mean that the BIA will still consider itself bound to apply Renteria in the future. 

Thanks to Lisa Brodyaga

POST CON RELIEF - RENTERIA AMICUS - See AA-MODELS - MODEL PLEADINGS
Renteria-Gonzalez v. INS, 322 F.3d 804 n.5 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) ("[T]he INS cannot collaterally attack the Order To Vacate, even for want of jurisdiction, because it did not directly appeal that order in 1992 . . . .")

POST CON RELIEF - TEXAS DISTRICT COURTS DISTINGUISH RENTERIA
Toledo-Hernandez v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tx.) (Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2003), inapplicable to convictions vacated on constitutional grounds); Hernandez-Arguello v. Winfrey, No. SA-03-CA-0823-RF (W.D. Tx. 2004) (Same).

Other

POST CON RELIEF - EFFECTIVE ORDER - PICKERING
Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Benders Immigration Bulletin 1103 (July 1, 2003).