ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Agency No. A73 075 825)
Before: Alito and McKEE, Circuit Judges, and SCHWARZER,*fn1 Senior
The opinion of the court was delivered by: Alito, Circuit Judge
Ramon Acosta petitions for review of a final order of deportation issued by the Board of Immigration Appeals (the "BIA"). Acosta challenges the BIA's holding that he has "been convicted of a violation of... a State [law]... relating to a controlled substance," within the meaning of former Section 241(a)(2)(B)(i) of the Immigration and Naturalization Act of 1952 (the "INA"), 8 U.S.C. § 1251(a)(2)(B)(i) (1994),*fn2 by virtue of his 1995 plea of nolo contendere in Pennsylvania state court to a single charge of heroin possession and the state court's order that he serve one year of probation. Under the transitional rules promulgated under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"), Pub. L. 104-208, 110 Stat. 3009, we have no jurisdiction to consider appeals from final orders of deportation that are issued "by reason of [an alien's] having committed a [controlled substance] offense."*fn3 IIRIRA § 309(c)(4)(G). We may, however, consider whether the disposition of Acosta's criminal proceeding under Pennsylvania law constitutes such a conviction. See Bovkun v. Ashcroft, 283 F.3d 166, 168-69 (3d Cir. 2002) (interpreting a similar jurisdictionstripping provision applicable to aliens who have been convicted of the commission of an aggravated felony). Acosta argues that the BIA erred when it failed to recognize an exception to the definition of "conviction" provided in Section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A),*fn4 that purportedly arises as a result of the provisions of the Federal First Offenders Act ("FFOA"), 18 U.S.C. § 3607. We reject this argument, and we therefore dismiss his petition for review.
On or around February 20, 1994, Acosta, a citizen of the Dominican Republic, entered the United States without inspection at or near Mayaguez, Puerto Rico. App. at 192. In February 1995, he married Virginia Ortiz, a United States citizen, in Philadelphia, Pennsylvania. Id. at 181. On February 28, 1995, he was arrested by the Philadelphia police and charged with heroin possession, in violation of Section 13 of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act ("Pennsylvania Controlled Substance Act"), Pa. Stat. Ann. tit. 35, § 780-113 (West 1995). App. at 122A. The police contacted the Immigration and Naturalization Service (the "INS"), and on March 2, 1995, the Philadelphia office of the INS served Acosta with an Order to Show Cause and Notice of Hearing, alleging that he was deportable under former Section 241(a)(1)(B) of the INA, for entering the United States without inspection. App. at 192-97. On April 7, 1995, Virginia Ortiz filed with the INS service center in Vermont a petition for the adjustment of Acosta's status to that of legal permanent resident. Id. at 172-85.
In July 1995, at a hearing before an Immigration Judge ("IJ"), Acosta conceded that he was deportable, pursuant to former Section 241(a)(1)(B) of the INA, for having entered the United States illegally, but he claimed that, because he was the beneficiary of a pending immediate-relative petition filed by a United States citizen, he should not be ordered deported. In the alternative, he argued that he should be permitted to depart voluntarily in lieu of deportation. App. at 26-27. The IJ adjourned the hearing "pending disposition of the criminal matter." Id. at 28.
In October 1995, Acosta entered a plea of nolo contendere in the Court of Common Pleas in Philadelphia to the charge of possessing 0.36 grams of heroin, in violation of Section 13 of the Pennsylvania Controlled Substance Act, Pa. Stat. Ann. tit. 35, § 780-113. Id. at 122A, 127. Pursuant to Section 17 of the Pennsylvania Controlled Substance Act, the Court elected to place Acosta, as a nonviolent and drug dependent offender, on one year of probation without entering a verdict. Pa. Stat. Ann. tit. 35 § 780-117 (West 1995).*fn5 App. at 127. Court records submitted by Acosta indicate that he successfully completed his probation and that the charges against him were ultimately dismissed without any adjudication of guilt.*fn6 App. to Appellant's Reply Br.
Following Acosta's entry of a plea of nolo contendere, his deportation hearing resumed, only to be postponed pending the outcome of the application for adjustment of status that Ortiz had filed with the INS service center in Vermont in March 1995. App. at 42-43, 48-56. In June 1996, the INS in Vermont determined that Acosta was eligible to adjust his status to that of a legal permanent resident. Id. at 129. At a hearing before the IJ in August 1996, the Philadelphia office of the INS opined that Acosta's plea of nolo contendere presented no statutory impediment to his application for adjustment of status, but nevertheless requested that the IJ exercise his discretion to refuse Acosta's application to become a legal permanent resident. Id. at 59-60.
In February 1997, the INS reversed its position and submitted a brief arguing that Acosta's 1995 nolo contendere plea to heroin possession constituted a conviction of a controlled substance offense that would support his deportation under former Section 241(a)(2)(B)(i) of the INA. App. at 111-16. The INS explained that the passage of the IIRIRA and the enactment of Section 101(a)(48)(A) of the INA had revised the definition of "conviction" that applies in immigration proceedings. App. at 114. In January 1998, the INS added to its prior charge the additional charge of deportability for conviction of a controlled substance offense, pursuant to former Section 241(a)(2)(B)(i) of the INA. App. at 108-09.
In March 1998, the IJ ruled that Acosta's nolo contendere plea satisfied the definition of "conviction" provided in Section 101(a)(48)(A) of the INA, thereby rendering him ineligible for adjustment of status to that of legal permanent resident and disqualifying him from applying for voluntary departure in lieu of deportation. Id. at 104-05. The IJ ordered Acosta deported to the Dominican Republic. Id. Acosta appealed to the BIA, but the BIA affirmed Acosta's deportation order on the grounds that he had entered the United States without inspection, pursuant to former Section 241(a)(1)(B) of the INA, and that he had been ...