Discipio v. Ashcroft, 04-60268.

• Decision Date: 13 July 2005
• Docket Number: No. 04-60268.,04-60268.
• Citation: 417 F.3d 448
• Parties: Ferdinando DISCIPIO, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

417 F.3d 448

Ferdinando DISCIPIO, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.

No. 04-60268.

United States Court of Appeals, Fifth Circuit.

July 13, 2005.

Anthony Drago, Boston, MA, for Petitioner.

Gregory D. Mack, David V. Bernal, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Office of Immigration Litigation, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Order Vacating Previous Panel Decision and Remanding to the Board of Immigration Appeals to Allow Respondent to Terminate Removal Proceedings Against Petitioner.

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Ferdinando Discipio, a permanent resident of the United States, became subject to deportation under the Immigration and Nationality Act after a Massachusetts court convicted him of possession with intent to distribute Percocet. The Massachusetts court later overturned that conviction because of procedural and substantive flaws in the proceeding. However, the immigration judge presiding over Petitioner's removal proceeding found that the Massachusetts conviction remained valid for immigration purposes under our holding in Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir.2002). As a result, the immigration judge ordered deportation, and the Board of Immigration Appeals ("Board") affirmed.¹ Pursuant to Renteria-Gonzalez, a panel of this Court reluctantly denied Petitioner's petition for review and expressed concerns over our controlling precedent. See Discipio v. Ashcroft, 369 F.3d 472 (5th Cir.2004).

Petitioner has now filed a petition for rehearing en banc. In its Opposition to Petitioner's Request for Rehearing En Banc, Respondent has advised this Court that it is prepared to modify its position and desires to terminate deportation proceedings against Petitioner. It now wishes to apply to Petitioner's case the Board's opinion in In re Pickering, 23 I. & N. Dec. 621 (BIA 2003), 2003 WL 21358480, where the Board held that convictions vacated on the basis of procedural and substantive defects are not valid convictions for purposes of immigration proceedings.

Respondent argues that because 8 U.S.C. § 1101(a)(48)(A) (defining "conviction" for immigration purposes) is silent on the effect of a vacated conviction on an alien's immigration status, this Court should defer to the Board's permissible construction of the statute. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Moosa v. INS, 171 F.3d 994, 1005 (5th Cir.1999).

According to Respondent, the Board's opinion in In re Pickering constitutes a permissible construction of the statute because it comprehensively addresses the effect of a vacated conviction. See Aguirre-Aguirre, 526 U.S. at 424-25, 119 S.Ct. 1439. There, the Board held that convictions vacated on the basis of procedural and substantive defects were not valid for purposes of immigration, while those vacated because of post-conviction events such as rehabilitation were to be given effect in immigration proceedings. The Board noted that such a distinction was in accord with federal court opinions addressing the issue and thus declined to apply the contrary holding of Renteria-Gonzalez v. I.N.S., 322 F.3d 804 (5th Cir.2002)(holding that a conviction remains valid regardless of the reason it was vacated), outside the jurisdiction of this Court.

Respondent concludes that Petitioner's conviction is not valid for immigration purposes under In re Pickering because Petitioner's conviction was undisputedly vacated for procedural and substantive defects. Respondent now wishes to give effect to its modified position by terminating deportation proceedings. With respect to other deportation proceedings arising or within the jurisdiction of this Court or that may be pending on appeal, Respondent has advised that the government is undertaking a policy review to determine how it will proceed in those cases. Petitioner has expressed no opposition to Respondent's new position,...