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PINHO v. GONZALES
432 F.3d 193 (2005)
Gummersindo J. PINHO; Danielle Pinho, Appellants
v.
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.
No. 04-3837.
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 COURTFISHER, 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).
* Substituted pursuant to FED. R.APP. P. 43(c) 1. The PTI program worked in 1992 just as it does today: once a defendant is accepted, the judge postpones all proceedings against him for at most thirty-six months, after which the judge must either dismiss the indictment, postpone proceedings further, or restore proceedings. With respect to dismissal, the relevant rule provides:
On the recommendation of the program director and with the consent of the prosecutor and the defendant, ["the designated judge shall"] dismiss the complaint, indictment or accusation against the defendant, such a dismissal to be designated `matter adjusted — complaint (or indictment or accusation) dismissed.' N.J. Rules Governing Criminal Practice, Rule 3-28 (1992 version). The New Jersey Supreme Court has issued guidelines for operation of PTI. Guideline 4 provides: "Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pre-trial intervention ineffective." The accompanying comment provided: A PTI program is presented to defendants as an opportunity to earn a dismissal of charges for social reasons and reasons of present and future behavior, legal guilt or innocence notwithstanding. . . . Within the context of pretrial intervention, when and whether guilt should be admitted is a decision for counselors. . . . Neither admission of guilt nor acknowledgment or responsibility is required. Steps to bar participation solely on such grounds would be an unwarranted discrimination. N.J. Rules Governing Criminal Practice, Rule 3-28, Guideline 4, Comment (1992 version). 2. Eligibility, of course, does not guarantee acceptance, which remained in the prosecutor's discretion. Because of the operation of the rule, though, Pinho was never even considered. So while he might eventually have been rejected even with effective assistance of counsel, he would not have been rejected because of the rule. In this respect, Pinho's 1992 PTI application mirrors his 2000 adjustment of status application. In each case a non-discretionary eligibility determination served as the gatekeeper for a discretionary action. 3. The record does not contain a vacatur order other than this statement from the bench. It is not disputed, however, that the conviction was in fact vacated. Whether the subsequent dismissal order may be treated as an implicit vacatur order, or whether the judge's statement from the bench was itself the vacatur order is of little moment. A paper record merely memorializes a judicial act, and the record is clear that the judicial act was carried out: Pinho's conviction was "dismiss[ed], cancel[ed] . . . discharge[d] or otherwise remove[d]." Sandoval v. I.N.S.,240 F.3d 577, 583 (7th Cir.2001). 4. Neither the Newark District Office, the Office of Administrative Appeals, the District Court, nor the government on appeal, analyzes 8 U.S.C. § 1182(a)(2)(C), which provides that
[a]ny alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance, is inadmissible. We therefore express no opinion on how that provision would apply in this case. 5. On June 30, 2004, and in the context of the previously filed action, Pinho filed a motion for injunctive relief, seeking an order directing the Newark office to grant him an employment authorization form, which was required by New Jersey for renewal of his driver's license. Pinho argued that denial of the authorization form was contrary to the applicable regulation governing eligibility, 8 C.F.R. § 274a.12(c)(9). The parties agree that the employment authorization has been granted, mooting any injunctive relief we might order. See Letter from Thomas E. Moseley to Marcia Waldron, Clerk of the Court, United States Court of Appeals for the Third Circuit, Sep. 9, 2005; letter from Christopher J. Christie, United States Attorney for the District of New Jersey, to Marcia Waldron, Clerk of the Court, United States Court of Appeals for the Third Circuit, Sep. 9, 2005. We therefore do not have properly before us the question of whether the agency violated 8 C.F.R. § 274a.12(c)(9) when it denied his application for employment authorization. 6. Article 440 of the New York Criminal Procedure Law, N.Y.Crim. Proc. Law § 440, pertains to post-judgment motions. 7. The BIA refused, as the government urged, to "go behind" the state court judgment and question whether the state court had followed its own laws in entering the vacatur. Rodriguez-Ruiz, 22 I. & N. Dec. at 1379. 8. On March 1, 2003, the INS's functions were transferred to the Bureau of Immigration and Customs Enforcement ("BICE") and the U.S. Customs and Immigration Service ("USCIS") of the United States Department of Homeland Security ("DHS"). See Knapik v. Ashcroft,384 F.3d 84, 86 n. 2 (3d Cir.2004) (citing Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, codified at 6 U.S.C. §§ 251, 271 & 291). Faced with this profusion of administrative bodies, we will adopt "the agency" as shorthand for the DHS and its sub-units. 9. Section 1252(a)(2)(B) of Title 8 of the United States Code, which also strips the district courts of jurisdiction over discretionary agency determinations, is in that respect at least partly duplicative of the APA requirement. 10. The cursory treatment of exhaustion by the Seventh Circuit in McBrearty v. Perryman,212 F.3d 985 (7th Cir.2000), is not on point. In that case, the plaintiffs "sought judicial review of the refusal by the district director of the immigration service to adjust their status. . . ." Id. at 986 (emphasis added). The Seventh Circuit dismissed the complaint for want of jurisdiction on the ground that "[t]he suit was premature, since, as the plaintiffs acknowledge, they could obtain review of the district director's decision by the Board of Immigration Appeals if and when the immigration service institutes removal (i.e.deportation) proceedings against them. They have thus failed to exhaust their administrative remedies." Id. (internal citation omitted). But the Seventh Circuit confuses the existence of a claim with the exhaustion of administrative remedies. The McBrearty plaintiffs were not challenging a legal determination of their statutory eligibility for adjustment, but rather a refusal to adjust their status. This distinction makes all the difference. The refusal to adjust — a discretionary determination — was (as the court notes) barred by § 1252(a)(2)(B). While it is true that the plaintiffs could have renewed their adjustment application in removal proceedings, that fact is irrelevant to the District Court's lack of jurisdiction: under Section 1252(a)(2)(B) the court had no jurisdiction because the plaintiffs had no claim at all, not because they had failed to exhaust a valid claim. McBrearty is not about exhaustion, and is redeemed from making law without proper analysis only by its facts; it surely cannot be said to stand for the proposition that immigrants stating a legal claim — one not barred by § 1252 — must always wait for deportation proceedings. 11. The Fifth Circuit, in Cardoso v. Reno,216 F.3d 512 (5th Cir.2000), held that denials of adjustment of status may reach the courts only through review of deportation proceedings. Because the court did not attempt to distinguish between denials of adjustment of status applications, and legal determinations of eligibility for status adjustment, it is not clear whether the Cardoso holding has much to do with the case at hand here. In Cardoso, the court considered three separate jurisdictional dismissals of immigration claims. One of them involved a claim that an application for adjustment of status had been wrongly denied as a matter of law. The applicant had filed for adjustment prior to her twenty-first birthday. However, the agency did not rule on the application for three years, at which point it denied the application on the grounds that the applicant was no longer eligible because she was no longer a minor. Id. at 514. The court held that the applicant could not invoke judicial review because the agency decision was not final, although it conceded that there were no deportation proceedings pending against the applicant. Id. at 518. We think it important as a matter of administrative law to distinguish between (reviewable) non-discretionary legal determinations, and (non-reviewable) discretionary determinations. Because the Fifth Circuit did not do so, we cannot tell with certainty whether we are in conflict on the question resolved in this case. 12. See, e.g., Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L.Rev. 452, 495-96 (1989) ("By the time of the ratification, the prevailing understanding of separation of powers was no longer a simplistic call for absolute segregation of conceptually distinct functions. The experience between independence and the Constitutional Convention had caused American political theorists to rethink the nature of governmental authority. They came to conclude that . . . all power in government shared the same fundamental quality: it was dangerous unless adequately offset and controlled. And so . . . the words `separation of powers' came to connote something far more subtle and intricate than a mere, abstractly logical division. The phrase expressed the expectation that, through the carefully orchestrated disposition and sharing of authority, restraint would be found in power counterbalancing power."). 13. Having concluded that jurisdiction exists under the APA, we think it inadvisable to speculate, in the absence of briefing, about alternative jurisdictional avenues by which AAO decisions might be reviewed. We will await cases which in which the parties contest jurisdiction and put the issue squarely before us. 14. See Ozkok, 19 I. & N. Dec. at 551-52. The third part of the test, which was omitted from the statutory definition, dealt with pre-judgment probation, and provided that such probation would be sufficient for a "conviction" if "a judgment of conviction or adjudication of guilt may be entered if the person violates the terms of the probation . . ." Id. at 552. 15. For our purposes here, we will treat the terms "vacated" and "expunged," which appear variously in the BIA opinions, as synonymous. The salient procedural situation is one in which a conviction is voided or invalidated, "dismiss[ed], cancel[ed] . . . discharge[d] or otherwise remove[d]," Sandoval v. I.N.S.,240 F.3d 577, 583 (7th Cir.2001), whatever the label, and whatever the subsequent availability of the record of the conviction. 16. Cf. Acosta, 341 F.3d at 226 n. 6 ("[W]e infer a congressional intent not to incorporate . . . a distinction [`between rehabilitative statutes that defer[] adjudication and those which expunge[] a prior admission or adjudication of guilt'] into the INA, but we do not infer that the elimination of such a distinction was the sole purpose of passing the revised definition of conviction in Section 101(a)(48)(A).") 17. It is conceivable, of course, that under § 1182(a)(2)(A) an immigrant might have admitted committing the relevant acts even where the § 1101(a)(48)(A) definition of "conviction" does not encompass the circumstances of his conviction. We need not decide this question here, because in this case, the admission and the guilty plea are one and the same. Had he been admitted to the PTI program, he need not have admitted anything. 18. Our decision in Acosta pertains only to deferred judgments; as we noted, the "charges against [Acosta] were ultimately dismissed without any adjudication of guilt." 341 F.3d at 221. 19. Some commentators have pointed out that state-deferred adjudications and state expungement statutes "are like apples and oranges," because while an expungement is a state's final determination of a person's legal status, "[d]eferring adjudication of guilt . . . simply represents an initial step that may [or may not] lead to formal expungement." James A.R. Nafziger & Michael Yimesgen, The Effect of Expungement on Removability of Non-Citizens, 36 U. Mich. J.L. Reform 915, 930 (2003). It is certainly true that deferred judgments and expungements are different, and it may well be that a sound immigration policy would take that difference into account, but we do not sit in judgment of the soundness of immigration policy: the question before us is simply whether the language of § 1101(a)(48)(A) may reasonably be read by the agency as encompassing both. 20. This is the jurisprudential cousin of the "grandfather" time-travel hypothetical: would it be possible to go back in time and murder one's own grandfather? Does a court — even one of general jurisdiction — have the power to declare that an earlier event never happened? See, e.g., Hon. Leon R. Yankwich, The Federal Penal System, 10 F.R.D. 539, 555 (1950) (suggesting that following expungement, a person can "claim truthfully that he has never been convicted of a felony"). 21. Lest the significance of this exception be overestimated, we note that although Pinho's offense was a drug offense, the above-noted exception referred only to rehabilitative vacaturs. Pinho's claim, by contrast, is that his was not a rehabilitative vacatur. 22. We do not, accordingly, read the statute as requiring unambiguously that all convictions, even those vacated because of substantive defects, are included in the definition. In this we join the published opinions of at least the First, Second, and Seventh Circuits, and depart from the Fifth Circuit. See Herrera-Inirio v. I.N.S.,208 F.3d 299, 305 (1st Cir.2000); United States v. Campbell,167 F.3d 94, 98 (2d Cir.1999); Sandoval v. I.N.S.,240 F.3d 577, 583-84 (7th Cir.2001); Renteria-Gonzalez v. I.N.S.,322 F.3d 804, 817-22 (5th Cir.2002). In Renteria-Gonzalez, the Fifth Circuit, in holding that a guilty plea followed by a Judicial Recommendation Against Deportation ("JRAD") remains a conviction for immigration purposes, observed that "five circuits, including this court, have concluded that a vacated or otherwise expunged state conviction remains valid under § 1101(a)(48)(A)," 322 F.3d at 814, which is true enough if we interpret "a" to mean "some" rather than "all" (that is, "a vacated conviction may remain valid" as opposed to "a vacated conviction must remain valid"). The use of the ambiguous phrasing is misleading in this context, because the other circuits listed, and now this Court, accept the distinction made by the BIA between convictions which do remain valid and convictions which do not. Indeed, in Renteria-Gonzalez, Judge Benavides concurred specially to emphasize that "the majority opinion paints with too broad a brush . . . [because] none of the convictions in the five cases cited by the majority was vacated based on the merits of the underlying criminal proceeding, i.e., a violation of a statutory or constitutional right with respect to the criminal conviction." 322 F.3d at 820. Because Renteria-Gonzalez's conviction was likewise not vacated because of a substantive defect, Judge Benavides continues, "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. . . ." Id. at 823 n. 24.
The breadth of Renteria-Gonzalez's holding remains unclear. Soon after the decision was issued, an immigration judge cited Renteria-Gonzalez in holding that a conviction that had been vacated due to "procedural and substantive flaws in the underlying proceeding" remained valid under § 1101(a)(48)(A), and the Fifth Circuit, per Judge Benavides, "reluctantly" dismissed the petition for review, holding that, although the circuit was now "out of step with the rest of the nation," it was bound by Renteria-Gonzalez. Discipio v. Ashcroft,369 F.3d 472, 474-75 (2004). However, the Justice Department subsequently petitioned the court to vacate Discipio and remand the case to the BIA for dismissal. The Justice Department argued that because § 1101(a)(48)(A) "is silent on the effect of a vacated conviction on an alien's immigration status, [the Fifth Circuit] should defer to the Board's" interpretation as set forth in Pickering, that substantive vacaturs are not "convictions." Discipio v. Ashcroft,417 F.3d 448 (5th Cir.2005). The panel agreed to remand the case, and rehearing en banc was denied as moot, Id. at 450, leaving the precise holding of Renteria-Gonzalez up in the air. At the very least, it is clear that to read Renteria-Gonzalez to cover substantive vacaturs is to stretch it far beyond its facts. Accepting the distinction between substantive and rehabilitative vacaturs not only gives proper deference to the agency's interpretation, but also serves to avoid the constitutional problems that might arise under a reading which brings constitutionally protected conduct or constitutionally infirm proceedings into the category of "conviction" — cases, for example, involving an alien who was convicted of conduct subsequently deemed constitutionally protected, or whose conviction was reversed on direct appeal because of insufficient evidence, or whose conviction was vacated on collateral attack because of a plain constitutional defect. The agency does not read the statute as encompassing such situations, however, so these difficult cases have not come before us. 23. Cf. Sandoval, 240 F.3d at 583 ("The INS also alleges that the modification [of Sandoval's conviction] was entered solely for immigration purposes, and is thus ineffective. This allegation is unfounded. The judge's modification was in response to Sandoval's properly filed motion stating a cognizable claim of ineffective assistance of counsel. That Sandoval may have filed his motion in response to the threat of deportation is irrelevant. Further, even if the state court judge's decision to modify Sandoval's sentence was motivated by the consequences of the federal immigration law, that fact would not render the modification ineffective for immigration purposes."). 24. For example, both judges and prosecutors enjoy absolute immunity from damage suits and criminal prosecution arising from their official acts. See Stump v. Sparkman,435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman,424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). It is unclear how the principle of immunity might extend to subpoenaed testimony about unstated motives. Our decision today avoids this issue. 25. We thus decline the government's similar invitation here to decide the ineffective assistance claim ourselves. See Brief for Appellee, at 11-12. 26. Lim v. Ashcroft, No. 01-CV-3271, 2002 WL 1967945 (D.N.J.2002) (unpublished). We remind the District Court that unpublished district court opinions are not a source of law. 27. The court summarized the proceedings as follows:
[T]he transcript shows that at the outset the court was presented with an arrangement in the nature of a plea agreement, that had been reached prior to the hearing between Mr. Lim and state authorities. Pursuant to the arrangement, the following actions were taken at the hearing: (1) the state court permitted Mr. Lim to withdraw his earlier plea to the kidnapping charge and enter a plea of guilty to a charge in the original indictment of aggravated assault; (2) the court vacated the kidnapping conviction and stated that the date of the new plea should be treated for immigration purposes as having been entered on March 18, 1996 (a fictitious date as far as the record reveals); (3) the state dismissed voluntarily the remaining charges; (4) the court sentenced Mr. Lim to time served. All agreed that the foregoing arrangement's purpose was to facilitate Mr. Lim in avoiding deportation; by attempting to amend the date of conviction, Mr. Lim and his counsel sought to avoid the AEDPA amendment and preserve his eligibility for Section 212(c) consideration. Lim, 2002 WL 1967945, at *3. 28. Although Judge McKee agrees with the rationale and result of our decision, he does not agree that we need to establish a formal test to properly resolve this appeal. He therefore does not endorse the majority's categorical test. 29. Our test is informed by our decisions in United States v. Taylor,98 F.3d 768 (3d Cir.1996), and United States v. Joshua,976 F.2d 844 (3d Cir.1992). In those cases we had to determine how to classify a prior crime for purposes of the Federal Sentencing Guidelines. We held that "a sentencing court should look solely to the conduct alleged in the count of the indictment charging the offense of conviction. . . ." Taylor, 98 F.3d at 771 (quoting Joshua, 976 F.2d at 856). Thus, to determine whether a prior crime was a "crime of violence," the sentencing court could look only at the conduct alleged in the indictment for the count which was proved or admitted. The court could not look outside the indictment to determine whether the defendant actually committed other acts which did not appear in the indictment on that count.
Our test also accords deference to the BIA's formulation in Pickering, which provides that "in making this determination [of the basis for a vacatur] we look to the law under which the . . . court issued its order and the terms of the order itself, as well as the reasons presented by the respondent in requesting that the court vacate the conviction." Pickering, 23 I. & N. Dec. at 625.
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