Lead Opinion
The Immigration and Naturalization Service (“INS”) and Ricardo Renteria-Gonzalez have wrangled for over a decade. Now that they finally have reached this court, their case provides yet another opportunity to interpret the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).
Although Renteria-Gonzalez has an “aggravated felony” conviction under the IIR-IRA definition, his conviction did not qualify as an “aggravated felony” under pre-IIRIRA immigration law. IIRIRA therefore does not deprive this court of jurisdic
I.
Renteria-Gonzalez, a citizen of Mexico, obtained temporary resident status in the United States in 1987. In 1989, he pleaded guilty of transporting illegal aliens within the United States in violatiоn of 8 U.S.C. § 1824(a)(1) and 18 U.S.C. § 2. The district court sentenced him to six months’ confinement and three years’ supervised release. The court also issued a “judicial recommendation against deportation” (“JRAD”) under 8 U.S.C. § 1251(b) (1988) (repealed by the Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat. 4978, 5050 (1990)).
Notwithstanding the JRAD, the INS began deportation proceedings in August 1990 by issuing an order to show cause based on Renteria-Gonzalez’s unlawful entry into the United States on the occasion when he transported the illegal aliens. The INS presumably used this allegation to avoid the JRAD on the transporting conviction. Yet, the INS had not terminated Renteria-Gonzalez’s temporary resident status either when he entered the United States with the illegal aliens or when the agency issued the order to show cause.
Thus, the INS voluntarily dismissed the order to show cause in August 1991. But in September 1991, the agency sent Rente-ria-Gonzalez a notice of intent to terminate his temporary resident status, then terminated his status in November 1991.
Renteria-Gonzalez sought two avenues of relief from the attempts to deport him. First, he appealed the termination of his temporary resident status to the INS’s Legalization Appeals Unit (“LAU”), which affirmed the termination of his temporary resident status in July 1992. Second, he petitioned the district court to vacate his conviction.
In February 1992, a magistrate judge recommended that the district court vacate Renteria-Gonzalez’s conviction under the All Writs Act, 28 U.S.C. § 1651. The district court adopted the recommendation and vacated his conviction in October 1992 (the “Order to Vacate”). The government immediately moved the court to reconsider the Order to Vacate, but the court denied the motion. The government did not appeal the Order to Vacate.
The INS began deportation proceedings anew in January 1994 by issuing another order to show cause, this time basing the order not only on Renteria-Gonzalez’s alleged unlawful entry and presence, but also on his alien smuggling activities.
The IJ’s decision ultimately turned on one factual dispute: Horger testified that the illegal aliens had told him that Rente-ria-Gonzalez and Bautista-Garcia had picked them up in Mexico for $150 to $250 per alien, whereas Renteria-Gonza-lez and Bautista-Garcia testified that they picked up the illegal aliens at a rest stop
Renteria-Gonzalez timely appealed to the Board of Immigration Appeals (“BIA”), arguing that he had not received a fair hearing because the INS had made no effort to obtain the presence of the illegal aliens he transported, and the IJ had not let him test Horger’s knowledge of Spanish on cross-examination. Renteria-Gonzalez also argued that the IJ and BIA lacked jurisdiction because the INS had not properly terminated his temporary resident status before instituting deportation proceedings. After an inexplicable delay of nearly seven years, the BIA in April 2001 finally dismissed Renteria-Gon-zalez’s appeal and approved a final order of removal. Renteria-Gonzalez petitions for review of the BIA’s decision.
II.
IIRIRA is a difficult statute. It consumes over a quarter of a 750-page omnibus law. It amends the Immigration and Nationality Act (“INA”) in dozens of important but technical ways. Most importantly for this case, IIRIRA dramatically restricts judicial review of final orders of removal.
Because IIRIRA is complicated, and its jurisdictional sections especially so, we first examine the relevant sections and the INS’s seemingly well-crafted argument against jurisdiction. We then explain why Renteria-Gonzalez’s conviction of transporting illegal aliens within the United States was not an “aggravated felony” conviction under pre-IIRIRA immigration law that, in the case of an “aggravated felony,” would strip this court of jurisdiction to review a petition for review.
A.
IIRIRA has a transitional rule and a permanent rule for judicial review of a final order of removal. The transitional rule appears only in IIRIRA § 309(c)(4)(G), not in the United States Code. The permanent rule appears as 8 U.S.C. § 1252(a)(2)(C). The transitional and permanent rules are nearly identical. The transitional rule states that
there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)® of such Act (as so in effect).
IIRIRA § 309(c)(4)(G).
Aside from syntactical differences, the permanent rule is identical, except that it omits the three parentheticals. See 8 U.S.C. § 1252(a)(2)(C). As we explain, infra part II.B.2, these parentheticals make all the difference in this case.
The transitional rule governs Renteria-Gonzalez’s case. It applies to any alien “whose deportation proceedings commence before IIRIRA’s general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996.” Lerma de Garcia v. INS,
The transitional rule (like the permanent rule) withdraws jurisdiction from the fed
Furthermore, the transitional rule (again, like the permanent rule) applies to a petition for review, even if the basis for the final order of removal is not the jurisdiction-stripping criminal offense. The transitional rule applies to aliens “deporta-ble by reason of having committed” an aggravated felony. This language does not require that the alien in fact be deported for having committed an aggravated felony, but only that he could be deported, i.e., is deportable, by reason of having committed an aggravated felony. “What the INS originally charged is of no consequence; so long as the alien in fact is removable for committing an aggravated felony, this court has no jurisdiction, irrespective of whether the INS originally sought removal for that reason.” Lopez-Elias v. Reno,
Thus, it is irrelevant that the INS did not charge Renteria-Gonzalez with commission of an aggravated felony, but instead with unlawful entry and presence and his alien smuggling activities.
Based on these sections of the post-IIRIRA INA, the INS makes an elegantly logical argument against jurisdiction. Renteria-Gonzalez was convicted of transporting illegal -aliens under § 1324(a). A § 1324(a) conviction is an “aggravated felony” under IIRIRA. An aggravated felony is a deportable criminal offense under § 1227(a)(2)(A)(iii), and IIRIRA § 309(c)(4)(G) withdraws jurisdiction to review a final order of removal against an alien deportable “by reason of having committed” an aggravated felony. Q.E.D., the INS argues, IIRIRA § 309(c)(4)(G) bars judicial review in this case.
B.
Renteria-Gonzalez responds to the INS’s argument with two contentions. First, he reasons that he no longer has a conviction, because the district court vacated his conviction in 1992. Second, he argues that his conviction of transporting illegal aliens, even if it remains valid, did not qualify as an “aggravаted felony” under pre-IIRIRA immigration law and thus is not a jurisdiction-stripping offense under IIRIRA § 309(c)(4)(G). Renteria-Gonzalez errs in saying that his conviction is vacated for purposes of the immigration laws, but he is correct that his conviction did not qualify as an “aggravated felony” under pre-IIRIRA immigration law.
1.
Renteria-Gonzalez contends that he no longer has a conviction, because the district court vacated his conviction in 1992. The INS responds that the Order to Vacate is null for'lack of subject matter jurisdiction or, in the alternative, that a properly vacated federal conviction remains valid for purposes of the immigration laws, even if a district court has pur
a.
The distriсt court committed several errors of law when it vacated Renteria-Gonzalez’s conviction. First, it lacked statutory authority. As the magistrate judge’s report and recommendation indicates, the court vacated Renteria-Gonza-lez’s conviction solely because of the 1990 JRAD and the perceived inequity of deporting him. The Immigration Act of 1990, however, rescinded all JRAD’s, whether issued “before, on, or after” November 29, 1990. Pub. L. No. 101-649, § 505, 104 Stat. 4978, 5050 (1990).
Thus, Renteria-Gonzalez’s JRAD was no longer effective in 1992 when the court relied on it to vacate his conviction. Yet, the court did not even consider the retroactive effect of § 505.
Second, the district court lacked equitable authority to vacate the conviction. “[N]o adequate statutory or historical warrant” authorizes the federal courts to add new equitable remedies to the federal post-conviction remedial scheme. United States v. Reyes,
A purely equitable order to vacate a conviction also encroaches on the President’s power and discretion to pardon. Reyes,
Third, and most seriously, the district court probably lacked subject matter jurisdiction to vacate Renteria-Gonzalez’s conviction. The magistrate judge’s report does not address the statutory source of the сourt’s jurisdiction to vacate. The district court presumably relied on the general federal question statute, 28 U.S.C. § 1331, and fashioned the Order to Vacate under the All Writs Act, which allows the federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions,” 28 U.S.C. § 1651.
The district court apparently thought that the Order to Vacate was necessary to enforce its earlier JRAD. After the Immigration Act of 1990, however, this rationale no longer could supply a jurisdictional hook, because the JRAD was void. Moreover, the All Writs Act does not con
Notwithstanding these many errors, however, the INS cannot collaterally attack the Order to Vacate, even for want of jurisdiction, because it did not directly appeal that order in 1992—an appeal in which it likely would have been successful.
b.
Even if, arguendo, the Order to Vacate was proper, Renteria-Gonzalez’s conviction remains valid for purposes of the immigration laws. The INA defines “conviction” as
with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
No court has addressed the precise question posed by this case, i.e., whether a vacated federal conviction remains valid under § 1101(a)(48)(A) as a deportable offense and thus as a bar to judicial review under the jurisdictional sections of IIRI-RA. Although it may seem counterintui-tive, the text, structure and history of the INA suggest that a vacated federal conviction does remain valid for purposes of the immigration laws. Moreover, several circuits, including this court, have held that a vacated state conviction remains valid under § 1101(a)(48)(A);
The most remarkable thing about how the INA defines “conviction” is that it defines it- at all. “Conviction” is a commonly used word among lawyers and laymen. The INA would have been perfectly comprehensible without a definition of “conviction,” or at least no more ambigu
Section 1101(a)(48)(A) notably omits any exception for vacated convictions.
Moreover, the INA proves that Congress knew how to write exceptions for certain kinds of post-conviction relief. Section 1227(a)(2) defines classes of aliens deportable because of certain criminal offenses. As explained supra part II.A, an alien deportable for these offenses may not obtain judicial review under either the transitional or the permanent rule. Section 1227(a)(2)(A)(v), however, states that convictions for some of these offenses are not grounds for deportation if the convicted alien receives “a full and unconditional pardon by the President of the United States or by the Governor of any of the several Stаtes.” Just as a pardoned conviction for these offenses is not grounds for deportation, it also is not a jurisdiction-stripping offense under either the transitional or the permanent rule. Section 1227(a)(2)(A)(v) thus creates an exception to the definition of “conviction” in § 1101(a)(48)(A) for certain pardoned convictions.
Congress therefore knew how to create exceptions to § 1101(a)(48)(A). That it included no exception for judicially vacated convictions likely indicates that it merely wanted to restrict to only the most directly accountable officers the power to negate a conviction and thereby block deportation.
The state of the law before Congress adopted § 1101(a)(48)(A) in 1996 further shows that it specifically intended a vacated conviction to remain valid for the purpose of the immigration laws. The BIA had struggled with the meaning of “conviction” for years. Murillo-Espinoza v. INS,
“This effort failed to produce the desired uniformity and Congress stepped in to fill the void.” Herrera-Inirio,
This analysis suggests that a vacated conviction, federal or state, remains valid for purposes of the immigration laws, and five circuits, including this court, have concluded that a vacated or otherwise expunged state conviction remains valid under § 1101(a)(48)(A).
Furthermore, the policies behind these cases—uniformity of federal law and consistency in enforcement of the immigration laws—extend to a vacated federal conviction, as well. If the meaning of “conviction” depended on state penal law, § 1101(a)(48)(A) could never obtain a uniform interpretation, and aliens convicted of identical crimes would face different immigration consequences based on the fortuity of the state in whiсh they committed their crimes. The unbridled discretion of federal judges would lead to these same vices as surely as would the vagaries of state law.
If anyone is to have this kind of discretion in the enforcement of the immigration laws, it should be the executive branch, which “must exercise especially sensitive political functions that implicate foreign relations.” INS v. Abudu,
2.
Although, for purposes of the immigration laws, Renteria-Gonzalez still has a conviction for transporting illegal aliens, the question remains whether this conviction is an “aggravated felony” conviction that bars judicial review. We decide that the conviction does not qualify as an “aggravated felony” under the INA “as in effect as of the date of the enactment of’ IIRIRA, so IIRIRA § 309(c)(4)(G) does not deprive us' of jurisdiction.
The INS’s argument presupposes that Renteria-Gonzalez’s conviction for illegally transporting aliens is an “aggravated felony.” The INS, however, has confused the IIRIRA definition of “aggravated felony” with the pre-IIRIRA definition(s).
The INS doubtless is correct that a conviction for transporting illegal aliens is, literally by definition, an “aggravated felony” under IIRIRA. 8 U.S.C. § 1101(a)(43)(N); Ruiz-Romero,
Nonetheless, the transitional rule governs the INS’s proceedings against Rente-ria-Gonzalez, and that rule does not use the new, post-IIRIRA definition of “aggravated felony.” As mentioned supra part 11.A, the transitional rules and the permanent rules differ in only one material respect, but that difference tips the balance in this case. IIRIRA § 309(c)(4)(G) withdraws jurisdiction over a final order of removal against an alien who is deportable by reason of having committed an “aggravated felony” under the INA “as in effect as of the date of the enactment of [IIRI-RA].” We therefore must apply the definition of “aggravated felony” in effect on September 30, 1996, to determine whether IIRIRA § 309(c)(4)(G) withdraws our jurisdiction in this ease.
Congress has amended the definition of “aggravated felony” in the INA four times since Renteria-Gonzalez’s conviction. Unlike IIRIRA, however, most of these amendments were not retroactive. Instead, each amendment applied only to convictions adjudged on or after the date of that respective amendment, so suрerseded definitions still govern past convictions. Thus, we look to the codified definition of “aggravated felony” at the time of Renteria-Gonzalez’s conviction.
The definition of “aggravated felony” in October 1989 included only murder, drug trafficking, weapons trafficking, or an attempt to commit these crimes. 8 U.S.C. § 1101(a)(43) (1988). Thus, Renteria-Gon-zalez’s § 1324(a) conviction for transporting illegal aliens did not qualify as an “aggravated felony” under the INA “as in effect as of the date of the enactment of [IIRIRA].”
On two grounds, Renteria-Gonzalez urges this court to grant his petition and reverse the final order of removal. First, he argues that he did not receive a fan-hearing before the IJ. Second, he contends that the IJ and BIA lacked jurisdiction because the INS had not properly terminated his temporary resident status before instituting deportation proceedings. Concluding that substantial evidence supports the BIA’s decision, we deny the petition for review.
A.
We generally review only the decision of the BIA, not that of the IJ. Carbajal-Gonzalez v. INS,
B.
Renteria-Gonzalez argues that, for two reasons, his hearing was unfair: (1) the INS did not make reasonable efforts to locate and produce the illegal aliens he transported, and (2) the IJ did not let him test, on cross-examination, Horger’s knowledge of Spanish. We disagree with both assertions.
1.
Renteria-Gonzalez insists that the INS failed in its duty to produсe, or attempt to produce, the illegal aliens he transported. Instead, the INS produced only Horger, who testified to the aliens’ statements that Renteria-Gonzalez and his accomplice, Bautista-Garcia, had picked them up in Mexico for a fee.
Renteria-Gonzalez contends that this failure to produce the aliens is unfair under Hernandez-Garza v. INS,
Hernandez-Garza is distinguishable from Renteria-Gonzalez’s situation in two important ways. First, the INS relied on Horger’s testimony, whereas in Hernandez-Garza the INS relied on affidavits. The holding of Hernandez-Garza was expressly limited to affidavits, and justifiably so.
Even if one supposes that Horger was lying about the aliens’ statements— and not even Renteria-Gonzalez asserts he was — Renteria-Gonzalez had the opportunity to cross-examine Horger about the statements. The IJ, therefore, could examine Horger’s demeanor and tone to ascertain his credibility, which affects the weight given to the statements much more than would the mere reading of a lifeless affidavit. Moreover, Horger’s testimony about the aliens’ statements was corroborated by the Forms 1-213, which another circuit has deemed “reliable document[s].” Guerrero-Perez v. INS,
Other evidence at the hearing buttressed Horger’s testimony and undermined Renteria-Gonzalez’s credibility. For example, Renteria-Gonzalez concealed his temporary residence card in his sock and did not produce the card when asked by Horger. Renteria-Gonzalez also lied about his temporary resident status, claiming, under interrogation by Horger, to be an illegal alien.
Furthermore, Renteria-Gonzalez and his accomplice, Bautista-Garcia, contradicted each other in their respective testimony. For instance, Renteria-Gonzalez testified that he and Bautista-Garcia shopped for several hours in Brownsville the day before their arrest, whereas Bau-tista-Garcia testified that they remained in their hotel all day. Such evidence, coupled with Horger’s inherent credibility, justified the IJ’s decision to credit Horger and to discredit Renteria-Gonzalez.
Second, Renteria-Gonzalez does not dispute that the INS attempted to locate and produce the aliens; he argues only that the agency did not employ the most effective means. By contrast, the petitioner in Hemandez-Garza asserted that the INS had not even attempted to locate and produce the aliens.
The INS admittedly did not make a herculean effort to locate the alien witnesses in the instant matter; its attorney told the IJ that he had conducted “CIS searches” for the five aliens.
In Hernandez-Garza, however, the INS asserted that it sent letters to the aliens but could not produce copies of all the letters. Hernandez-Garza,
Not only is Hemcmdez-Garza distinguishable, but Renteria-Gonzalez stumbles several times on appeal as he contends that the INS did not make reasonable efforts to locate and produce the aliens under the reasoning of Hemandez-Garza. First, Renteria-Gonzalez does not dispute Horger’s veracity, and “people may not assert a cross-examination right to prevent the government from establishing uncontested facts.” Olabanji,
Third, Renteria-Gonzalez never explains how the INS could have compelled the presence of the aliens at an administrative hearing in the United States, even if the agency had successfully written to them in Mexico. Given the distinctions between Hemandez-Garza and this ease and Renteria-Gonzalez’s admissions, the BIA had substantial evidence to conclude that the INS’s failure to produce the aliens did not result in an unfair hearing.
2.
Renteria-Gonzalez insists that, on cross-examination, the IJ did not let him test Horger’s knowledge of Spanish; he hypothesizes that Horger did not fully understand Spanish and therefore misunderstood the aliens’ statements to him. Renteria-Gonzalez contends that under Hemandez-Garza, he had a right to test Horger’s knowledge of Spanish, because Horger’s language skills “were critical if the [immigration] judge was to admit and give credence” to his testimony. Hernandez-Garza,
This argument is almost frivolous. Hernandez-Garza is easily distinguishable. There, defense counsel asked agents to translate a written doсument from Spanish to English, so the IJ could test the agents’ translations against the interpreter’s translation.
In the instant case, however, Renteria-Gonzalez wanted the interpreter to become an independent witness to the Spanish conversation between Renteria-Gonzalez and Horger.
C.
Renteria-Gonzalez avers that the BIA and IJ lacked jurisdiction over his
The INS sent Renteria-Gonzalez a notice of intent to terminate his temporary resident status in September 1991 and terminated his status in November 1991. The LAU affirmed the termination in July 1992, and the INS did not begin deportation proceedings until January 1994, when it sent Renteria-Gonzalez an order to show cause. Renteria-Gonzalez, however, contends that his temporary resident status was not properly terminated, because the September 1991 notice cited the incorrect section of the INA as the grounds for termination.
The scrivener’s error in the September 1991 notice did not nullify the termination of Renteria-Gonzalez’s temporary resident status. Despite that error, the text of the notice unambiguously notified Renteria-Gonzalez of the rеason for termination: “[Y]ou were convicted of Transporting an Illegal Alien Within the United States, a felony offense. This conviction renders you ineligible for temporary resident status.”
The Ninth Circuit recently and summarily rejected an identical argument, holding that the petitioner “had sufficient notice of the conviction underlying his deportation proceedings, and any error in the Notice to Appear was harmless.” Chowdhury v. INS,
Renteria-Gonzalez cannot now feign ignorance. The September 1991 notice plainly was sufficient.
The petition for review is DENIED.
Notes
. We cite this statute using the abbreviation ''IIRIRA” followed by the section number from the statute.
. Although styled a "recommendation,” a JRAD was "binding on the Attorney General.” United States v. Castro,
. Under pre-IIRIRA law, these two grounds for deportation appeared at 8 U.S.C. § 1251(a)(1)(B), (E)(i) (1994). IIRIRA re-codified these grounds for deportation at 8 U.S.C. § 1227(a)(1)(B), (E)(i). See IIRIRA § 305(a)(2).
. Section 1227(a)(l)(E)(i) covers conduct similar to that encompassed by § 1324(a) but does not requires a criminal conviction before an alien may be deported for alien smuggling.
. Every circuit to address the question has held that § 505 retroactively rescinded all JRAD’s and did not thereby violate the Ex Post Facto Clause. See United States v. Ya-coubian,
. The Second Circuit has held that a district court does not retain jurisdiction to enforce a void JRAD after the Immigration Act of 1990. United States v. Tablie,
. See Chicot County Drainage Dist. v. Baxter State Bank,
.According to the BIA’s interpretation, vacated state convictions remain valid under § 1101(a)(48)(A). In re Roldan-Santoyo, 22 I. & N. Dec. 512 (B.I.A.1999). The BIA has not addressed the precise question whether a vacated federal conviction remains valid under § 1101(a)(48)(A). Thus, we are not required to give Chevron deference to the agency’s interpretation in Roldan-Santoyo. But even if the two questions are similar enough to come within the Chevron framework, we have held that § 1101 (a)(48)(A) plainly speaks to the precise question of a vacated state conviction, and therefore the Chevron analysis stops at step one. Moosa v. INS,
. Moosa,
. See United States v. Campbell,
. See, e.g., Herrera-Inirio,
. Of course, this analysis would apply also to any alien with a post-IIRIRA conviction of transporting illegal aliens or with a pre-IIRI-RA conviction of transporting illegal aliens but whose deportation proceedings did not begin until after IIRIRA became effective.
. On September 30, 1996, Congress had most recently amended the INA in the Antiter-rorism and Effective Death Penalty Act of 1996 ("AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Under AEDPA, the definition of “aggravated felony” included a § 1324(a) conviction for which the term of imprisonment imposed was at least five years. AEDPA § 440(e)(3). AEDPA further made this definition retroactive as if it had been included in § 222 of the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, § 222, 108 Stat. 4305, 4320 (1994) ("INTCA”). AEDPA § 440(f). The INTCA amendments applied only to convictions "entered on or after the date of enactment of [INTCA].” INTCA § 222(b). Thus, the older definition of "aggravated felony” still governed Renteria-Gonzalez's conviction, notwithstanding the INTCA, AEDPA, and IIR-IRA amendments.
Even if the AEDPA amendments controlled under IIRIRA § 309(c)(4)(G), however, our conclusion would be no different. AEDPA included a § 1324(a) conviction in the definition of "aggravated felony” only if the alien received a sentence of imprisonment of at least five years, AEDPA § 440(e)(3), but Renteria-Gonzalez received a six-month sentence.
.In general, IIRIRA dramatically restricts judicial review of final orders of removal. As
This conclusion applies only in the rare instance of a criminal alien (1) whose deportation proceedings began before April 1, 1997, and ended more than thirty days after -September 30, 1996, and (2) whose conviction qualifies as a jurisdiction-stripping offense under the IIRIRA definitions but not under the pre-IIRIRA definitions. It just so happens that Renteria-Gonzalez fits into this unusual category.
. The INS did not rely on Renteria-Gonza-lez's conviction at the hearing before the IJ, presumably because the agency had concluded that the Order to Vacate barred its use. The Order to Vacate did not bar the deportation proceeding altogether, though, because to deport an alien, the INA requires only a showing of, not a conviction of, unlawful presence in the United Statеs and alien smuggling activities. 8 U.S.C. § 1227(a)(1)(B), (E)(i).
. Insofar as Renteria-Gonzalez makes a hearsay-type objection to the use of the Forms 1-213, we observe that these documents come within the public records exception to the hearsay rule, Fed.R.Evid. 803(8), not that the hearsay rules apply to deportation proceedings in the first place, Olabanji v. INS,
. According to Renteria-Gonzalez, CIS is a law enforcement database; otherwise, the record does not contain any information about CIS or the likelihood of success of a CIS search.
. The IJ did not speak Spanish and hence could not evaluate the conversation himself.
. The September 1991 notice of intent to terminate cited former § 245A(b)(2)(A), 8 U.S.C. § 1255a(b)(2)(A) (1988), but it should have cited former § 245A(b)(2)(B)(i)-(ii), 8 U.S.C. § 1255a(b)(2)(B)(i)-(ii) (1988).
. In a stroke of boldness, Renteria-Gonzalez also contends that the INS, so far from having the power to deport him, had an affirmative duty to legalize his temporary resident status into permanent resident status. To the contrary, however, because the scrivener's error in the September 1991 notice was harmless, the INS effectively terminated his temporary resident status, leaving no residency status at all to adjust to permanent status.
Concurrence Opinion
Concurring:
Although I would reach the same result as the majority in the case at bar, I write separately because section 11(B)(1)(b) of the majority opinion paints with too broad a brush with respect to whether a vacated conviction falls within the purview of the definition found in 8 U.S.C. § 1101(a)(48)(A). Section 1101(a)(48)(A) provides that:
The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(I) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
*841 (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
The majority states that five circuits,
In Moosa v. I.N.S.,
Subsequently, the First Circuit has concluded that “state rehabilitative programs that have the effect of vacating a conviction other than on the merits or on a basis tied to the violation of a statutory or constitutional right in the underlying criminal case havé' no bearing in determining whether an alien is to be considered ‘convicted’ under section 1101(a)(48)(A).” Herrera-Inirio v. I.N.S.,
The common thread running through the above cases is that convictions set
Finally, the majority opinion states that “[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.” Maj. Op. at 838 (emphasis added). To the extent this statement acknowledges that the plain language of § 1101 (a)(48)(A) does not provide that a conviction vacated on the merits remains valid for immigration purposes, I agree.
I recognize that the provision at issue does not contain an express exception for convictions vacated based on а legal defect. Nonetheless, the majority’s interpretation is in violation of the “common mandate of statutory construction to avoid absurd results.” Atchison v. Collins,
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 defеct in the underlying criminal proceeding constitutes a conviction under § 1101(a)(48)(A).
. Herrera-Inirio v. I.N.S.,
. Additionally, the Eleventh Circuit, in the context of an equal protection challenge, has held that an expunged California conviction qualified as a conviction under § 1101(a)(48)(A) and, thus, could serve as a basis for removal. See Fernandez-Bernal v. Attorney Gen.,
. In In re RODRIGUEZ-RUIZ, Interim Decision 3436,
. Of course, any indication in the majority opinion that a conviction vacated based on the merits constitutes a conviction under § 1101(a)(48)(A) is entirely dicta in that the case at bar did not involve such a vacatur.