(C)  Fifth Circuit Exception.  A panel of the Fifth Circuit, in Renteria-Gonzales v. INS, seems to say a conviction vacated on a ground of legal invalidity continues to exist for immigration purposes.[16]  This statement, however, was dictum, because in fact the conviction in that case had been set aside on the basis of rehabilitative relief, rather than vacated as legally invalid.[17]  The present practice, in the Fifth Circuit, is for the DHS to move to remand a BIA appeal where the conviction has been vacated within the meaning of the Pickering rule, so it appears Renteria’s dictum is not currently being enforced.[18]

 

                In a special concurrence to Renteria, 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.[19]

 

The concurrence further explains that because Renteria’s conviction had not been vacated on grounds of legal invalidity, the majority opinion cannot be understood as altering the long-standing rule:

 

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 INA § 1101(a)(48)(A).[20]

 

Although the specifics of the order vacating the conviction in the district court are not explained in either opinion, the concurring judge views the trial-court order as vacating the conviction on humanitarian grounds, rather than on grounds that the conviction was 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.”[21] 

 

                Another panel of the Fifth Circuit soundly criticized Renteria, but was constrained to follow it.[22] This later decision, however, was vacated, and the matter was remanded for termination of removal proceedings after the Justice Department argued that because the statute[23] “is silent on the effect of a vacated conviction on an alien’s immigration status, [the Fifth Circuit] should defer to the Board’s” interpretation as set forth in Pickering, and hold that substantive vacaturs are not “convictions.”  The Third Circuit commented that these two Fifth Circuit decisions “leav[e] the precise holding of Renteria-Gonzalez up in the air.  At the very least, it is clear that to read Renteria-Gonzalez to cover substantive vacaturs is to stretch it far beyond its facts.”[24]

 

                Counsel in the Fifth Circuit with a vacatur based on a ground of legal invalidity can make the following arguments:

 

                (1)  The language in Renteria that suggests convictions vacated as legally invalid still exist for immigration purposes is dictum, since there was no such vacatur in that case. 

 

                (2)  The BIA itself rejects the Renteria dictum and follows it in cases arising in the Fifth Circuit only by compulsion:

 

To the extent that the DHS relies on Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th Cir. 2002), our decisions in Matter of Pickering, supra, and Matter of Rodriguez-Ruiz, supra, make clear that we do not share the view of the United States Court of Appeals for the Fifth Circuit on this matter. The Sixth Circuit, in whose jurisdiction this proceeding arises, has not adopted the Fifth Circuit’s approach in Renteria-Gonzalez. Moreover, the Government recently stated its view in a case arising within the Fifth Circuit that “the Board’s opinion in [Matter of] Pickering constitutes a permissible construction of the statute because it comprehensively addresses the effect of a vacated conviction.” Discipio v. Ashcroft, 417 F.3d 448, 450 (5th Cir. 2005). Consequently, the court in Discipio granted the Government’s request to remand the case to the Board for termination of removal proceedings based on the vacation of the respondent’s conviction because of procedural defects in the underlying criminal proceedings. (Id. at 880.)[25]

 

                (3)  The Full Faith and Credit doctrine prevents the immigration courts from going behind the face of a state court order that explicitly invalidates a state conviction.[26]  See § 11.5, infra.

 

                (4)  In deportation proceedings, and in other contexts as well, the burden is on the government to establish the existence and nature of the conviction by clear and convincing evidence.  If the order vacating the conviction is ambiguous as to whether it was issued on a ground of legal invalidity, or issued as a matter of rehabilitative relief, the government cannot sustain its burden of proof.  See § 11.6, infra.

 

                (5)  The Renteria panel’s predominant rationale was that the definition of conviction in IIRAIRA did not expressly provide an exception for vacated convictions.[27]  This rationale, however, ignores an established rule of statutory construction.  Congress is not presumed to change well-established legal precedent by silence.[28]  Under Chevron,[29] “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.”[30]  As the agency has addressed the effect of a non-rehabilitative vacation, as well as other exceptions to the statutory definition of conviction under 8 U.S.C.§ 1101(a)(48)(A),[31] the panel ought to have considered these rulings to determine whether they present a permissible construction of the statute.[32]

 

                (6)  No federal court, including Renteria, has actually held that a conviction vacated under a non-rehabilitative statute remains a conviction under 8 U.S.C. § 1101(a)(48)(A).[33]

 

                (7)  The Constitution does not permit a conviction, vacated on constitutional grounds, to be used to trigger deportation.  This argument is based on authorities that hold it is improper to use a prior conviction, that has been or should have been[34]  invalidated, to contribute to a later conviction or sentence.[35]  A conviction of possession of a firearm by a felon[36] requires the government to prove the defendant was represented by counsel or knowingly and intelligently waived counsel.[37]  When a defendant pleaded guilty in state court, he signed a form that said he waived counsel, and warned him of consequences, but did not warn him of dangers and disadvantages of self-representation.[38]  The court held this warning was insufficient to prove a knowing and intelligent waiver, and therefore the prior conviction could not constitute a predicate offense on which to sustain a charge of possession of a firearm after conviction of a listed criminal offense.  In this case, the Ninth Circuit expressly extended the Faretta standard to misdemeanor state court crimes. “[A] brief exchange regarding the waiver of counsel should not significantly increase the burden on the courts.  While the volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result, we must continually guard against assembly-line justice, in which expediency is placed ahead of fundamental fairness.”[39]  The court also pointed out that an innocent defendant, unaware of the potential consequences of a misdemeanor conviction, may be more likely to waive counsel to “get the whole thing over with,” especially if s/he is to be sentenced to time served, as was done here.[40]  The defendant, who did not knowingly and intelligently waive the right to counsel in the prior criminal proceeding, cannot be convicted of being a felon or misdemeanant in possession of a firearm under 18 U.S.C. § 922(g)(9).[41] 

 

                An interpretation that the statute defining conviction allows immigration authorities to ground adverse immigration consequences upon an unconstitutional conviction is itself unconstitutional.  As the Third Circuit recognized:

 

Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agency’s 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.[42]

 

The Third Circuit found the state vacatur in that case effectively eliminated the conviction for immigration purposes because: “The only basis for the vacatur appearing in the order or the pleadings is Pinho’s ineffective assistance claim.”[43]

 

                (8)  Renteria cannot be seen as rejecting these arguments, to the extent that they were not made in that case. 

 

[16] Renteria-Gonzalez v. INS, 322 F.3d 804, 817-22 (5th Cir. 2002) (holding a guilty plea followed by a Judicial Recommendation Against Deportation remains a conviction for immigration purposes, even where it was unclear from the majority opinion whether the conviction had been vacated on the merits or as a matter of state rehabilitative relief).

[17] See Opinion of Benavides, J., specially concurring.

[18] Thanks to Lisa Brodyaga for this information.

[19] Id. at 842 (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. I.NS, 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)).

[20] Renteria, 310 F.3d at 841-43 (Benavides, J., specially concurring).

[21] Id. at 843 n.4.  

[22] Discipio v. Ashcroft, 369 F.3d 472, 474-75 (5th Cir. 2004), vacated and remanded, 417 F.3d 448, 450 (5th Cir. 2005).

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

[24] Pinho v. Gonzales, 432 F.3d 193, 209 n.22 (3d Cir. Dec. 20, 2005).

[25] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[26] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).

[27] Renteria, supra, at 833-34 (“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.”)

[28] 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”).

[29] Chevron USA v. Natural Resources Defense Counsel, 467 U.S. 837 (1984).

[30] Renteria, supra, at 843 (emphasis added).

[31] Matter of Rodriguez-Ruiz, supra, at 1379; see also Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000).

[32] Chevron, supra, at 843.

[33] This argument was taken from the amicus curiae petition for rehearing filed in Renteria.

[34] Cook v. Lynaugh, 821 F.2d 1072, 1978 (5th Cir. 1987) (ineffective counsel to admit prior conviction allegation without investigating whether it was constitutionally invalid).

[35] Johnson v. Mississippi, 486 U.S. 578, 580-84, 585 n.7 (1988).

[36] 18 U.S.C. § 922(g)(9) (possession of firearm by person previously convicted of a misdemeanor domestic violence offense).

[37] 18 U.S.C. § 921(a)(33)(B)(i).

[38] Faretta v. California, 422 U.S. 806 (1975).

[39] Argersinger v. Hamlin, 407 U.S. 25 (1972) (internal quotes omitted).

[40] Id., n.4, quoting Molignaro v. Smith, 408 F.2d 795, 801 (5th Cir. 1969).

[41] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[42] Pinho v. Gonzales, 432 F.3d 193, 209 n.22 (3d Cir. Dec. 20, 2005).

[43] Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir. Dec. 20, 2005).

Third Circuit

POST CON RELIEF " DHS ALLOWED TO FILE NEW CHARGES OF REMOVAL AFTER VACATUR OF CONVICTION
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).