Gaona-Romero v. Gonzales , 497 F.3d 694 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 21, 2007
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
ON PETITION FOR REHEARING EN BANC
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
Per Curiam:
In a November 28, 2006 opinion, this court affirmed the
decision of Board of Immigration Appeals (“BIA”) to remove
Petitioner Armando Gaona-Romero (“Gaona”). Gaona-Romero v.
Gonzales, 207 F. App’x 386 (5th Cir. 2006) (unpublished). We
held, following this circuit’s precedent in Renteria-Gonzalez v.
INS, 322 F.3d 804 (5th Cir. 2003), 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.
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Gaona now seeks en banc review of the panel decision in his
case. Gaona urges that this court should abandon its adherence to
Renteria and instead follow the interpretation of “conviction,”
defined in 8 U.S.C. § 1101(a)(48)(A), adopted by the BIA in In re
Pickering, 23 I. & N. Dec. 621 (BIA 2003). The Pickering approach
distinguishes between a conviction vacated for rehabilitative
purposes or immigration hardships and a conviction vacated
because of a procedural or substantive defect, and holds that the
former, but not the latter, counts as a “conviction” under
§ 1101(a)(48)(A) and thereby renders an alien removable under
§ 1182(a)(2)(A)(i)(II). Because Gaona’s controlled substance
conviction was vacated for substantive reasons, he asserts that
under Pickering, he would not be removable under
§ 1182(a)(2)(A)(i)(II).
In response to Gaona’s petition for en banc review, the
government declares that it no longer takes the position that
Gaona should be removed on the basis of his vacated controlled
substances conviction. The government now takes the position that
Pickering, rather than Renteria, should be applied to this case,
and therefore Gaona’s vacated drug conviction does not render him
removable.
The government explains that after this court’s decision in
Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005), the
government undertook a policy review to determine how removal
cases arising in the Fifth Circuit that involve vacated
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convictions should be treated. The government concluded that it
would not seek that removal decisions be upheld pursuant to
Renteria, but rather would request remand to the BIA so that the
government could take action in accord with Pickering. The
government thus concedes that it erred in this case by seeking
affirmance of the BIA’s removal decision on the basis of Gaona’s
vacated drug conviction. The government requests that this court
vacate its panel decision and remand to the BIA so that the
government may withdraw the charge of removability based upon
Gaona’s vacated drug conviction.
Treating the government’s response to Gaona’s petition for
en banc reconsideration as a motion for panel rehearing, we
hereby vacate our November 28, 2006 opinion, Gaona-Romero v.
Gonzales, 207 F. App’x 386 (5th Cir. 2006), and remand to the BIA
so that the government may follow through on its pledge to
withdraw the charge of removability under § 1182(a)(2)(A)(i)(II).
Gaona’s petition for rehearing en banc is denied as moot because
the opinion which it seeks to review is vacated herein.
VACATED and REMANDED.
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