This principle has not been altered by the IIRAIRA new definition of conviction.[15]  For example, the Ninth Circuit has recently reaffirmed this principle, in dictum, on the basis of an INS concession:

 

The INS concedes, and we agree, that Congress did not intend that a conviction subsequently overturned on the merits (either because of a finding of insufficient evidence or because of a basic procedural inadequacy, such as a violation of the right to counsel), could serve as the basis for deportation.  Thus, the INS acknowledges that a court’s subsequent treatment of a conviction, after it has been entered, may in some cases serve to prohibit its use for immigration purposes.[16]

 

The court continued:

 

The INS’s concession, while not extending to all reversals, is not limited to reversals that have to do with the defendant’s guilt.  The concession also covers reversals that occur because of a fundamental procedural defect, such as the absence of counsel, discrimination in jury selection, or a violation of the right to self-representation, even when the evidence of guilt is overwhelming.  See Neder v. United States, 527 U.S. 1, 8 (1999).  We see no basis in the statute for limiting in any manner the class of reversed convictions that the INS may not use as the basis for a deportation order.[17]

 

            Moreover, in a thoughtful analysis of the context and content of the new definition of conviction, the Ninth Circuit concluded that the purpose of the new definition was to alter the nature of the disposition that is considered a conviction in the first place, rather than to change any part of the law affecting the circumstances under which a conviction would be considered to have been eliminated by some later judicial action.[18]

 

Even if there is no explicit order vacating a conviction, if the criminal court, after a motion or petition to vacate a conviction has been filed on a ground of legal invalidity, grants a new sentence that could only be imposed for a non-deportable conviction, the immigration courts must infer the deportable conviction has been vacated, and a new nondeportable conviction substituted.  In Sandoval v. INS,[19] the Seventh Circuit granted a petition for review, and remanded the case to the BIA for entry of an order terminating deportation proceedings that had been instituted on the basis of an initial felony conviction of possession of more than 30 grams of marijuana.  The defendant had filed a post-conviction motion[20] in the criminal court claiming the plea was involuntary because it had been based on defense counsel’s mistaken advice not to worry about any immigration consequences.[21]  In response to the motion, the criminal court entered a modified sentencing order of 24 months of first-offender probation, which is only possible if the defendant is a first-time offender convicted of possession of 30 grams or less of marijuana.

 

In holding that the criminal court had implicitly vacated the original judgment on a ground of legal invalidity, the Seventh Circuit distinguished the BIA decision in Matter of Roldan Santoyo,[22] on the grounds that the state court judge had not used a state rehabilitative statute but rather used a statute authorizing him to vacate a conviction or sentence on grounds of a constitutional violation.

            Therefore, the new definition of conviction does not alter the long-standing rule that a criminal court order vacating a conviction on some ground of legal invalidity effectively eliminates the conviction for all immigration purposes.  Since the result of issuance of the order is to vacate the conviction completely, there is no conviction to be held against the defendant for immigration purposes.[23]  The INS has conceded as much in other cases as well.[24]

 

Unfortunately, the Fifth Circuit has taken the contrary view, refusing to halt removal proceedings where a federal conviction was vacated under the All Writs Act, 28 U.S.C. § 1651.  In Renteria-Gonzalez v. INS,[25] without citing any of the cases discussed herein, the court found in a conclusory fashion that “vacated” convictions remain valid for immigrations purposes. The court’s predominant rationale was that the definition of conviction in IIRAIRA did not expressly provide an exception for vacated convictions.[26] 

 

In a special concurrence, Judge Benavides aptly pointed out that the majority opinion fails to recognize the distinction between convictions vacated on legal grounds as opposed to those erased under state rehabilitative statutes:

 

The majority states that five circuits, including this Court, have concluded that a “vacated or otherwise expunged state conviction remains valid under § 1101(a)(48)(A).” Maj. op. at 835.  Although I have no quarrel with the proposition that convictions vacated pursuant to rehabilitative provisions or expunged convictions remain valid for the purposes of § 1101(a)(48)(a), I would emphasize that 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.  Indeed, as set forth below, two of those sister circuit opinions contain language recognizing a distinction between the two categories of vacaturs: vacaturs on the merits versus rehabilitative vacaturs.[27]

 

The concurrence further explained that because Renteria’s conviction was not vacated on legal grounds, the majority opinion cannot be understood as altering the long-standing definition of conviction:

The common thread running through the above cases is that convictions set aside or vacated based on events subsequent to the conviction — not because of a defect in the conviction itself — constitute convictions within the meaning of § 1101(a)(48)(A). Likewise, in the instant case, Renteria’s conviction was not vacated because there was a valid challenge to the underlying criminal proceedings. Thus, although I agree that the above cases indicate that Renteria’s vacated conviction qualifies as a conviction under § 1101(a)(48)(A), I would tailor the analysis more narrowly to the facts at issue. Specifically, I would distinguish the instant vacatur from cases involving convictions vacated because of a defect in the criminal proceedings. . . . 

 

Applying the majority’s holding to vacaturs based on the merits would result in what I believe to be an absurd result and certainly not in keeping with the notion of American judicial traditions. For instance, if the courts determine there was insufficient evidence, an involuntary guilty plea or a violation of other constitutional or statutory rights, we customarily vacate such a conviction.  It would seem to be an absurd result to interpret the provision to encompass convictions that state or federal courts have deemed deficient on the merits. In my view, such a judicial determination operates to negate a conviction with respect to the merits.  In summary, I do not believe the majority opinion should be understood to indicate that a conviction that has been vacated or reversed based on a defect in the underlying criminal proceeding constitutes a conviction under § 1101(a)(48)(A).[28]

 

Although the specifics of the order vacating the conviction are not explained in either opinion, the concurring judge views the order as vacating the conviction on humanitarian grounds, rather than as legally invalid.  As a result, he finds that any discussion of the effectiveness of a conviction vacated on the merits is “entirely dicta in that the case at bar did not involve such a vacatur.”[29]

 

Thus, although the immigration authorities are likely to continue pressing the argument that a vacated conviction remains valid under the IIRAIRA definition of conviction and citing this decision in support, it should be pointed out that the Fifth Circuit’s holding in this regard is dictum and should be disregarded.  At least one Texas district judge has held that a state court order vacating a conviction for aggravated assault on federal constitutional grounds was effective to eliminate the conviction for immigration purposes.[30]

 

            In Matter of Pickering,[31] however, the BIA held that a Canadian court order purporting to vacate a conviction was ineffective to eliminate its immigration consequences since the “quashing of the conviction was not based on a defect in the conviction or in the proceedings underlying the conviction, but instead appears to have been entered solely for immigration purposes.”[32]  This decision expressly states it does not change the pre-existing rule that a vacatur which is based on a ground of legal invalidity existing at the time the conviction first arose is effective in eliminating the immigration consequences of a criminal conviction.[33]

            To be effective, post-conviction counsel must obtain a court order in the original criminal case vacating or setting aside the conviction that meets a number of specific requirements.

 

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

[16] Lujan-Armendariz v. INS, 222 F.3d 728, 747 (9th Cir. 2000) (footnote 30 omitted).

[17] Lujan-Armendariz v. INS, 222 F.3d 728, 747 n.30 (9th Cir. 2000).

[18] “Instead, the purpose of the amendment [the new statutory definition of ‘conviction’] appears to have been to establish the time at which a particular type of proceeding, specifically, deferred adjudication, results in a conviction for immigration purposes — not to alter the long-standing rule that a conviction entered but subsequently vacated or set aside cannot serve as the basis for a deportation order.”  Lujan-Armendariz v. INS, 222 F.3d 728, 745 (9th Cir. 2000).

[19] Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

[20] Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38, para. 122 ff., now codified as Ill.Comp.Stat.Ann. 5/122-1 (West Supp. 2000).

[21] “It is counsel’s responsibility, and not the court’s, to advise an accused of a collateral consequence of a plea of guilty; the consequence of deportation has been held to be collateral.”  People v. Correa, 485 N.E.2d 307, 310 (Ill. 1985).  Reliance on counsel’s mistaken immigration advice can render the plea involuntary.  See id.; People v. Luna, 570 N.E.2d 404, 406-07 (Ill.App.Ct. 1991) (holding that post-conviction petition, which alleged that counsel failed to advise noncitizen that a felony conviction could result in deportation, was sufficient to state a claim for ineffective assistance of counsel).

[22] 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).

[23] Hernandez Almanza v. United States Dep't of Justice, 547 F.2d 100, 103 (9th Cir. 1976); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981); Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Matter of Sirhan, 13 I. & N. 592 (BIA 1970); see also Matter of O, 7 I. & N. Dec. 171 (BIA 1956); Matter of Kaneda, 16 I. & N. Dec. 677, 680 (BIA 1979).

[24]  In Cruz-Sanchez v. INS, 438 F.2d 1087 (7th Cir. 1971), the INS pointed out that “if petitioner is successful in challenging his conviction in the court which rendered the judgment, he may move to reopen the deportation proceeding.”  (Id. at p. 1089.)  Petitioner did so, and the Ninth Circuit, on rehearing, recognized that the criminal court “has now vacated the sentence . . . upon which the Order of Deportation sought to be reviewed was based.”  (Ibid.)  The court therefore remanded the matter to the INS, with directions to give the matter further consideration in light of the vacation of the sentence.  (Ibid.)

[25] Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002).

[26] Id. at 812 (“Although it may seem counterintuitive, the text, structure and history of the INA suggest that a vacated federal conviction does remain valid for purposes of the immigration laws.”)

[27] Id. at 820-21 (Benavides, J., specially concurring), citing Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000) (state delayed adjudication of guilt); United States v. Campbell, 167 F.3d 94, 96-98 (2d Cir.1999) (federal sentencing case); Nwandu v. Crocetti, 8 Fed.Appx. 162, 167 n.8 (4th Cir. 2001) (foreign conviction allegedly expunged); Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (state delayed adjudication of guilt); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); Fernandez-Bernal v. Attorney Gen., 257 F.3d 1304, 1312-17 (11th Cir. 2001); Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[28] Renteria, 322 F.3d at 822-823 (Benavides, J., specially concurring).

[29] Id. at 843 n.4.  

[30] Toledo-Hernández v. Winfrey, No. SA-03-CA-0785-RF (W.D. Tex. Jan. 28, 2004) (unpublished).

[31] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).

 

[32] Id. at 625.

 

[33] For an excellent analysis of Pickering, see Lory Rosenberg, Recognition of Vacation of Conviction and Matter of Pickering: Comity or Tragedy?, 8 Bender’s Imm. Bull. 1103 (July 1, 2003).  For a description of effective orders to vacate convictions, see N. Tooby, Effective Post-Conviction Relief: Eliminating Criminal Convictions for Immigration Purposes, in II AILA Handbook on Immigration and Nationality Law – Advanced Practice (2001-2002); N. Tooby & K. Brady, Criminal Defense of Immigrants § 10.2-10.7 (3d ed. 2003); N. Tooby, Aggravated Felonies § 7.2 et seq. (2003). See also Immigration Law and Crimes § § 4.2, 4.20 (2003).

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).