Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Feb. 27, 2003) (stating in dicta that federal and state convictions remain valid for immigration purposes even if vacated on legal grounds).
Argument Against Renteria:      Congress is not presumed to change well-established legal precedent by silence. American Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 613-14 (1991)("If this amendment had been intended to place the importation limitation on the scope of the Board’s rulemaking powers . . . we would expect to find some expression of that intent in the legislative history"). Under Chevron, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843 (emphasis added). As the agency has addressed the effect of a non-rehabilitative vacation, as well as other exceptions to a conviction under 8 U.S.C. 1101(a)(48)(A),[FN1] [FN1] Matter of Rodriguez-Ruiz, supra, at 1379; see also Matter of Devison, 22 I&N 1362 (BIA 2000). the panel ought to have considered these rulings to determine whether they present a permissible construction of the statute. Chevron, supra, at 843.      In particular, although the Board of Immigration Appeals ruled in Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), that no effect is to be given to an 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 Board left room for an exception. The Board’s decision was "limited to those circumstances where an alien has been the beneficiary of a state rehabilitative statute," and does not extend to cases in which a conviction was "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." Id. at 523.      This construction of 8 U.S.C.1101(a)(48)(A) is consistent with the legislative history and leaves intact the agency’s longstanding distinction between convictions vacated under non-rehabilitative statutes and those that were technically erased, withheld, or deferred. See Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970) (holding that because an alien’s vacated conviction no longer existed, it could not form a basis for deportability under 8 U.S.C. 1251(a)(11)). In Sirhan, the Board ruled that "[t]here is . . . no authority holding that a conviction exists where there is no finding by a criminal court that a person is guilty of a crime. On the contrary, when a court acts within its jurisdiction and vacates an original judgment of conviction, its action must be respected." Id. at 600 (emphasis added). See also Matter of Rodriguez-Ruiz, supra. at 1379; Matter of O’Sullivan, 10 I&N Dec. 320 (BIA 1963) (holding that a conviction dismissed nolle prosequi was not a conviction for immigration purposes).      Although the panel is correct in noting that the Board has not addressed the precise question of whether a vacated federal conviction remains a conviction for immigration purposes,[FN2] [FN2] The Board also left open the question of "the effect to be given . . .to first offender treatment accorded to an alien under 18 U.S.C. 3607 by a federal court," Matter of Roldan, supra, at 524, n. 9. See also Matter of Salazar, 23 I&N Dec. 223, 231 (BIA 2002). Renteria, supra, at *17, n. 8, the Board’s reasoning in both Roldan and Rodriguez-Ruiz reflect the Board’s view that the statutory definition of conviction accommodates exceptions. See also Lujan-Armendariz v. INS, supra, at 746-47. Furthermore, no federal court has ruled that a conviction vacated under a non-rehabilitative statute remains a conviction under 8 U.S.C. 1101(a)(48)(A). THIS IS FROM RENTERIA AMICUS PETITION FOR REHEARING