Gaona-Romero v. Gonzales , 207 F. App'x 386 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 03-60842
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ARMANDO GAONA-ROMERO
Petitioner,
v.
ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74-700-798
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
Per Curiam:*
Petitioner Armando Gaona-Romero (“Gaona”) seeks review of a
final order of removal by the Board of Immigration Appeals
(“BIA”), entered on October 7, 2003. Gaona raises two claims of
error: first, that the BIA erred in determining that he is
removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on the basis of
his vacated controlled substance conviction; and second, that the
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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BIA erred in determining that he is removable under 8 U.S.C.
§ 1182(a)(6)(E)(i) on the basis of his conviction for aiding and
abetting aliens to elude examination and inspection by
immigration officials. Applying Renteria-Gonzalez v. INS, 322
F.3d 804 (5th Cir. 2003), we hold that the BIA correctly
determined that Gaona is removable under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) on the basis of his vacated controlled
substance conviction. Accordingly, we DENY the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gaona is a native and citizen of Mexico who entered the
United States without inspection in 1978. On June 5, 1997, Gaona
pleaded guilty in Texas state court to the possession of
marijuana and was fined $1000 as a result. In 2002, after
removal proceedings had been commenced, Gaona filed a petition
for habeas corpus in Texas state court, seeking to have his
conviction overturned. The Texas court granted the writ,
concluding that Gaona’s plea violated the federal and state
constitutions because it was not “knowingly and voluntarily
entered,” and vacated Gaona’s drug conviction.
In 2000, Gaona was charged with transporting two illegal
aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and
§ 1324(a)(1)(A)(v)(II), and with one count of conspiracy to
transport said aliens, in violation of § 1324(a)(1)(A)(v)(I).
Gaona pleaded guilty to two counts, under 18 U.S.C. § 2 and 8
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U.S.C. § 1325(a)(2), for aiding and abetting two aliens to
“elude[] examination and inspection” by immigration officials.
In August 2001, the United States government charged Gaona
with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being an
alien present in the United States without being properly
admitted or paroled after inspection and under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) for having been convicted of a controlled
substance offense. In September 2002, the government charged
Gaona with removability under 8 U.S.C. § 1182(a)(6)(E)(i) for
being an alien who aided or abetted another alien in entering or
trying to enter the United States in violation of the law.
On October 29, 2002, an immigration judge found Gaona
removable as a controlled substance offender under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) and also found that his conviction for
aiding and abetting an illegal immigrant in eluding examination
and inspection made him subject to removal under 8 U.S.C.
§ 1182(a)(6)(E)(i).1 Subsequently, the judge withdrew his finding
that Gaona was removable for his drug conviction, citing the fact
that Gaona’s conviction had been vacated.
On appeal to the BIA, Gaona challenged the immigration
judge’s finding that he was removable under 8 U.S.C.
§ 1182(a)(6)(E)(i) due to his conviction for aiding and abetting
1
According to Gaona, “the Judge never required Mr. Gaona to
plead to the illegal entry charge,” “[n]or did he find in his
oral decision that Mr. Gaona was removable for that reason.”
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illegal immigrants to elude inspection. Gaona argued that there
was a material distinction between the language of
§ 1182(a)(6)(E)(i) and the charge to which he pleaded guilty:
§ 1182(a)(6)(E)(i) provides for removal of an alien who has aided
or abetted another alien in illegal entry or attempted entry into
the United States, whereas Gaona was convicted of aiding and
abetting illegal aliens in eluding examination and inspection.
Gaona argued that the eluding of inspection might occur, and in
his case did occur, after the aliens had completed their entry
into the United States.
In turn, the United States government appealed the
immigration judge’s finding that Gaona was not removable under 8
U.S.C. § 1182(a)(2)(A)(i)(II) on the basis of his vacated
controlled substance conviction. The government argued that the
Texas court had exceeded its jurisdiction in granting Gaona’s
habeas petition because Gaona was not in custody and because
there was no constitutional defect in the criminal proceedings.
The government claimed that Gaona’s conviction was vacated not
because of a constitutional defect, but to avoid immigration
consequences, a distinction that is significant under the BIA’s
caselaw. See In re Pickering, 23 I. & N. Dec. 621 (BIA 2003).
The government also argued that this court’s decision in
Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2003), mandated
a finding that Gaona’s vacated conviction remained a conviction
for immigration purposes.
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On October 7, 2003, the BIA dismissed Gaona’s appeal,
rejecting Gaona’s claim that his conviction for helping an
illegal alien to elude examination and inspection did not render
him removable under 8 U.S.C. § 1182(a)(6)(E)(i). The BIA
reasoned that examination and inspection are part of the entry
process. The BIA also sustained the government’s appeal, ruling
that Gaona was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on
the basis of his drug conviction. The BIA determined that
Gaona’s immigration proceedings arose within the jurisdiction of
the Fifth Circuit and that Renteria-Gonzalez was controlling
precedent for immigration cases in this jurisdiction. Applying
Renteria-Gonzalez, the BIA held that Gaona’s vacated conviction
was still valid for immigration purposes, and that he was
therefore deportable under § 1182(a)(2)(A)(i)(II). Finally, the
BIA held that either conviction rendered Gaona ineligible for
cancellation of removal.
Gaona filed a timely petition for review in this court; we
held our review in abeyance pending the disposition of the
petition for rehearing en banc in Discipio v. Ashcroft (Discipio
I), 369 F.3d 472 (5th Cir. 2004), vacated on denial of reh’g en
banc, 417 F.3d 448 (5th Cir. 2005).
II. JURISDICTION
The government proposes that this court lacks jurisdiction
to review Gaona’s final order of removal because Gaona is
removable by reason of having committed a criminal offense
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covered in 8 U.S.C. § 1182(a)(2). See 8 U.S.C. § 1252(a)(2)(C).
The government’s argument is outdated, as its brief was submitted
before the May 31, 2005, enactment of the REAL ID Act, Pub. L.
No. 109-13, 119 Stat. 231. 8 U.S.C. § 1252(a)(2)(D), added by
the REAL ID Act, provides:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (other than this section) which
limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or
questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with
this section.
Congress specifically stated that the provisions of
§ 1252(a)(2)(D) would take effect immediately and would apply
retroactively to cases in which the final order of removal was
issued before the date of enactment. REAL ID Act § 106(b); see
also Ramirez-Molina v. Ziglar, 436 F.3d 508, 512 (5th Cir. 2006).
In accordance with § 1252(a)(2)(D), therefore, this court has
jurisdiction to hear questions of law raised by Gaona in a
petition that would otherwise be barred by § 1252(a)(2)(C). See
Okafor v. Gonzales, 456 F.3d 531, 533 (5th Cir. 2006). In his
appeal from the BIA’s determination of removability for his drug
conviction (the determination that could deprive this court of
jurisdiction under § 1252(a)(2)(C)), Gaona raises a question of
law–-whether a conviction vacated for constitutional error is
still a conviction for immigration purposes. As a result, this
court has jurisdiction to hear Gaona’s petition.
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III. STANDARD OF REVIEW
In reviewing a decision by the BIA, this court examines
questions of law de novo. Alwan v. Ashcroft, 388 F.3d 507, 510
(5th Cir. 2004). An agency’s interpretations of the statutes and
regulations it administers should be given deference in
accordance with Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984). The BIA's factual conclusions are
reviewed for substantial evidence. Ozdemir v. INS, 46 F.3d 6, 7
(5th Cir. 1994). This court does not consider the rulings and
findings of immigration judges unless they were relied upon by
the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
Here, the BIA independently examined the record and issued its
own findings.
IV. DISCUSSION
We first address whether the BIA erred in determining that
Gaona is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) on the
basis of his vacated controlled substance conviction. In
Renteria-Gonzalez, this court stated that “a vacated conviction,
federal or state, remains valid for purposes of the immigration
laws.” 322 F.3d at 814. Gaona contends that this language is
mere dicta and therefore does not control the outcome in this
case. Gaona urges that the Fifth Circuit embrace the approach
adopted by the BIA in In re Pickering, 23 I.& N. Dec. 621 (BIA
2003), which distinguishes between convictions vacated for
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substantive or procedural error and those vacated for
rehabilitative purposes. The BIA applies this test in cases that
arise from all jurisdictions other than the Fifth Circuit, where
it considers itself bound by Renteria-Gonzalez. See In re
Pickering, 23 I.& N. Dec. at 624. Gaona argues that Chevron
deference is due to the BIA’s preferred interpretation of the
statute it is charged to administer.
It is true that the discussion in Renteria-Gonzalez swept
beyond the precise issue in that case, which concerned a federal
conviction that had been vacated by a district court to avoid the
immigration-related consequences of the conviction. 322 F.3d at
811. In addressing that issue, the Renteria-Gonzalez majority
reasoned that § 1101(a)(48)(A), which, unlike earlier immigration
statutes, took the trouble to define “conviction,” did not
include an exception for vacated convictions. The majority wrote
that “Congress must have anticipated the problem [of vacated
convictions], yet it chose to remain silent,” a fact which the
majority concluded “strongly implies that Congress did not intend
any such exception.” Id. at 813.2 Thus, while the concurring
opinion in Renteria-Gonzalez characterized “any indication in the
majority opinion that a conviction vacated based on the merits
2
The majority also argued that the provision in 8 U.S.C.
§ 1101(a)(48)(A) of an exception for executive pardons, and not
vacated convictions, reinforced its interpretation of “conviction,”
and indicated that Congress “wanted to restrict to only the most
directly accountable officers the power to negate a conviction and
thereby block deportation.” Id.8
constitutes a conviction under [8 U.S.C.] § 1101(a)(48)(A)” as
“entirely dicta” (Id. at 823 n.24 (Benavides, J., concurring)),
the majority opinion could be read as holding that a conviction
vacated for any reason was still a conviction for immigration
purposes.
The decisions in Discipio I and II resolve this uncertainty.
In Discipio I, which involved a state conviction vacated for
substantive and procedural reasons, the court held that it was
bound by Renteria-Gonzalez to deny Discipio’s appeal, writing
that “[u]ntil the Fifth Circuit en banc or the Supreme Court
reforms Renteria-Gonzalez, we must apply that decision as
written.” Discipio I, 369 F.3d at 475. In Discipio II, the
court noted that “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]” and declared that “a panel of
this court is without authority to contradict the holding of the
previous panel in Renteria-Gonzalez.” Discipio II, 417 F.3d at
449-50. Discipio I and II make clear that the Fifth Circuit
deems the holding of Renteria-Gonzalez to be that all vacated
convictions remain convictions for the purposes of immigration
proceedings.
Because Gaona’s immigration proceedings fall within the
jurisdiction of the Fifth Circuit, the BIA is bound to follow
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Renteria-Gonzalez where it applies. We are not at liberty to
revise Renteria-Gonzalez, since in the absence of an intervening
Supreme Court decision, no subsequent panel may overrule the
decisions of another panel or limit the prior decision to the
facts set forth therein. United States v. Smith, 354 F.3d 390,
399 (5th Cir. 2003). Accordingly, the BIA did not err in finding
Gaona removable on the basis of his vacated controlled substance
conviction.
Having concluded that Gaona is removable on the basis of his
vacated controlled substance conviction, we need not address
Gaona’s second contention: that the BIA erred in determining that
he is removable under 8 U.S.C. § 1182(a)(6)(E)(i) on the basis of
his conviction for aiding and abetting aliens to elude
examination and inspection.
V. CONCLUSION
Because the BIA correctly applied Renteria-Gonzalez in
ruling that Gaona is removable under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) on the basis of his vacated controlled
substance conviction, we DENY Gaona’s petition for review.
DENIED.
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