PINHO v. GONZALES
432 F.3d 193 (2005)
Gummersindo J. PINHO; Danielle Pinho, Appellants
Alberto R. GONZALES,* Attorney General of the United States; Michael Chertoff,* Secretary of the Department of Homeland Security; Andrea Quarantillo, District Director Newark District of the United States Citizenship and Immigration Services; Department of Homeland Security; United States Citizenship and Immigration Services.
United States Court of Appeals, Third Circuit.
Argued September 15, 2005.
December 20, 2005.
Thomas E. Moseley (Argued), Newark, NJ, for Appellants.
Susan C. Cassell (Argued), Office of United States Attorney, Newark, NJ, for Appellees.
Before ROTH, McKEE and FISHER, Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
In this case we are asked to decide when a vacated criminal conviction remains a "conviction," and when it does not, for purposes of determining an immigrant's eligibility for deportation. We conclude that the government may reasonably draw a distinction between convictions vacated for rehabilitative purposes and those vacated because of underlying defects in the criminal proceedings, and we establish a categorical test to guide this determination. Applying this test, we will reverse the judgment of the District Court.I.A.
Petitioner Gummersindo Pinho, a native of Portugal, is married to a United States citizen with whom he has two children, who are also U.S. citizens. In February 1992, Pinho was arrested and charged with three third-degree drug offenses under New Jersey law: possession of cocaine ("Count I"), possession with intent to distribute cocaine ("Count II"), and possession with intent to distribute cocaine on or near school property ("Count III"). Because he had no prior criminal record, Pinho applied for admission into New Jersey's "Pre-Trial Intervention" program ("PTI"), under which criminal proceedings would be postponed pending Pinho's completion of a rehabilitation program, at which point the charges would be dropped. Admission into PTI did not require an admission of guilt.1
Pinho's application to PTI was rejected, however. At the time, the local state prosecutor's office, acting in accordance with a directive of the state Attorney General, had a per se rule against accepting into PTI any defendant against whom there was a viable case for possession with intent to distribute drugs at or near a school. See State v. Caliguiri,158 N.J. 28, 726 A.2d 912, 921 (1999). This rule was later invalidated by the New Jersey Supreme Court as contravening the purposes of the statute governing PTI. Id. Under the New Jersey Rules, appeal of denials of PTI applications was permitted only following a conviction or guilty plea. N.J. Rules Governing Criminal Practice Rule 3.28(f), (g) (1992 version).