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 The unpublished Board of Immigration Appeals case upon which this appeal was based, In re Discipio, A19 321 919, 2004 WL 880306 (BIA March 3, 2004) (unpublished), shows that the respondent was convicted, and apparently lived in Massachusetts.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