Crimes of Moral Turpitude

 

(B)

Fifth Circuit.  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. [33]  In Renteria-Gonzalez v. INS,[34] the Fifth Circuit found in a conclusory fashion that “vacated” convictions remain valid for immigration purposes.  The court’s predominant rationale was that the definition of conviction in IIRAIRA did not expressly provide an exception for vacated convictions.[35] 

 

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.[36]

 

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).[37]

 

Although the specifics of the order vacating the conviction 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.”[38] 

 

Thus, although the immigration authorities may 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.  Renteria has been criticized in other decisions within the Fifth Circuit,[39] and distinguished in still others.[40]

 

The Board has made it clear that it followed the contrary rule in the Fifth Circuit only under 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.) [41]

 

It thus appears that the DHS has essentially decided to ignore Renteria, and will give effect to a vacatur that is sufficient under Pickering to erase the conviction for immigration purposes, even within the Fifth Circuit.[42]

 

            The Fifth Circuit should grant rehearing, and vacate Renteria, to eliminate its dictum as out of step with the rest of the nation.  Although the Renteria panel was correct in noting that the Board has not addressed the precise question of whether a vacated federal conviction remains a conviction for immigration purposes,[43] the Board’s reasoning in both Roldan[44] and Rodriguez-Ruiz[45] reflects the Board’s view that the statutory definition of conviction accommodates exceptions.[46]  Furthermore, no federal court has ruled that a conviction vacated as legally invalid remains a conviction under the statutory definition.[47]

[33] 28 U.S.C. § 1651.

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

[35] Id. 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.”)

[36] 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. INS, 261 F.3d 771, 773-74 (9th Cir. 2001) (state conviction expunged); Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1312-17 (11th Cir. 2001); Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000)).

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

[38] Id. at 843 n.4.  

[39] Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005).

[40] Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006) (Kansas court’s nunc pro tunc correction of internally inconsistent criminal judgment was a proper use of nunc pro tunc under Kansas law; as a correction of record made to properly reflect the original judgement, the nunc pro tunc judgment was properly considered by the BIA, and such consideration does not contradict Renteria).

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

[42] See also Gaona-Romero v. Gonzales, 497 F.3d 694 (5th Cir. Aug. 21, 2007) (per curiam) (since government concedes that noncitizen is no longer removable, because his conviction was vacated as legally invalid, the panel affirmance of the removal order is vacated, the case is remanded to the BIA to permit the government to withdraw its charge of removability pursuant to in Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), and the petition for rehearing is denied as moot).

[43] Renteria, supra, at 813, n.8.  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).

[44] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999).

[45] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000) (according full faith and credit to a New York court’s vacation of a conviction under a statute that was neither an expungement nor a rehabilitative statute).

[46] See also Lujan-Armendariz v. INS, supra, at 746-47.

[47] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(48)(A). This argument was taken from the amicus curiae petition for rehearing filed in Renteria.