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Pinho v. Gonzales

December 20, 2005


On Appeal from the United States District Court for the District of New Jersey (D.C. No. 03-cv-06232) District Judge: Honorable Dennis M. Cavanaugh.

The opinion of the court was delivered by: Fisher, Circuit Judge


Argued September 15, 2005

Before: ROTH, McKEE and FISHER, Circuit Judges.


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.



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.*fn1

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. Caliguri, 726 A.2d 912, 921 (N.J. 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).

On August 17, 1992, Pinho pleaded guilty to Count I, possession of cocaine. He was represented at the time of the plea by the same attorney who helped him apply to PTI. Counts II and III were dismissed. Pinho's sentence was two years' probation, a substance abuse evaluation, an assessment of $1,080, and the loss of his driving privileges for six months.

On June 2, 1997, some five years later, and after he had served his sentence, Pinho, now represented by different counsel, applied for post-conviction relief in New Jersey Superior Court, contending that he had received ineffective assistance of counsel in connection with his rejection from PTI. The motion was timely, see N.J. Court Rule 3.22-12(a) (providing that motions for post-conviction relief are timely within five years). In the motion, Pinho alleged that his prior counsel had failed to ascertain whether the conduct underlying Count III had actually occurred near a school. It is undisputed that while the building had previously been a school, it was, at the time of the alleged crime, in fact not a school, but rather a maintenance and storage building. Pinho contended that, had this fact been known, he would not have been deemed ineligible for PTI through the operation of the per se rule.*fn2 New Jersey courts have held that counsel's failure to establish PTI eligibility can support ineffective assistance claims. See State v. Marrero, 383 A.2d 131, 132 (N.J. Super. Ct. 1978); State v. Cruz, No. A-5184-02T5 (N.J. Super. Ct. 2004) (unpublished).

The state did not file an answer to Pinho's motion, and the court held a hearing on his claim on March 10, 1998. At that hearing, the court observed:

[The parties] have been dealing with this matter for several months, the upshot of which was that there would be an application by Mr. Pinho to PT-I. If acceptable then the matter would be dismissed once he was placed in P-T-I -- and since Mr. Pinho has been accepted into P-T-I, I think the previous judgment of conviction can be vacated.

Transcript at 3, New Jersey v. Pinho, No.1009-6-92 (N.J. Super. Ct. Mar. 10, 1998).*fn3 The prosecutor responded, "Very good, Judge, I move for that dismissal if need be." Id. By letter dated May 1, 1998, the prosecutor's office consented to Pinho's admission to PTI. The letter explained that "[t]his approval is based upon the facts and circumstances of this case and this defendant." Letter from John N. Shaughnessy, Assistant Prosecutor, County of Middlesex, New Jersey, to Ronald W. Reba (May 1, 1998). All charges against Pinho were then dismissed by order dated May 21, 1998. The order provided:

Upon application of Pretrial Intervention Program for an Order to dismiss the above captioned . . . indictments . . . pursuant to Rule 3:28 . . . the Court having considered the report of the Pretrial Intervention Program concerning the defendant's participation. . . . It is on this 21st day of May 1998 ORDERED that the . . . indictments . . . [be] dismissed . . . [and] the clerk . . . is hereby directed to mark the court record "Complaint dismissed -- matter adjusted.'

Order of Dismissal, New Jersey v. Pinho, No. 1009-6-92 (N.J. Super. Ct. May 21, 1998).


In January 2000, Pinho applied to the Newark District Office of the Immigration and Naturalization Service ("INS") for an adjustment of his immigration status to "permanent resident" under 8 U.S.C. § 1255, based upon his marriage to a U.S. citizen. In a decision dated December 11, 2000, the INS denied adjustment on the ground that Pinho was inadmissible to the United States under 8 U.S.C. § 212(a)(2)(A)(i)(II), which provides that "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . is inadmissible."*fn4 The agency reasoned that Pinho's 1992 plea to Count I in New Jersey met the definition of "conviction" in § 1011(a)(48)(A). That section provides:

The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court, or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding or guilt, and

(ii) the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed.

In reaching its decision, the agency relied heavily upon a Board of Immigration Appeals ("BIA") decision, In re Roldan, 22 I. & N. Dec. 512 (B.I.A. 1999), in which the agency had held that "an alien is considered convicted for immigration purposes upon the initial satisfaction of the requirements of [8 U.S.C. § 1101(a)(48)(A)] and that he remains convicted notwithstanding a subsequent state action purporting to erase all evidence of the original determination of guilt through a rehabilitative procedure." Roldan, 22 I. & N. Dec. at 523. The Newark District Director certified his decision to the Associate Commissioner for Examinations; the Associate Commissioner affirmed on June 28, 2001. The INS Office of Administrative Appeals affirmed on July 25, 2002.


On December 31, 2003, Pinho and his wife filed a complaint in District Court seeking a declaratory judgment that the denial of his adjustment of status was arbitrary, capricious and unlawful because his vacated state conviction should no longer be a bar to his eligibility for adjustment.*fn5

Pinho's argument in the District Court hinged on the status of his conviction under 8 U.S.C. § 1101(a)(48)(A). The BIA interprets § 1101(a)(48)(A) to draw a distinction between convictions vacated because of the immigrant's subsequent participation in a rehabilitation program, and convictions vacated because of underlying substantive or constitutional defects. See In re Pickering, 23 I. & N. Dec. 621 (B.I.A. 2003). Pinho argued that his conviction had been vacated in settlement of his ineffective assistance of counsel claim, rather than as part of a rehabilitation program. Pinho relied largely on three cases: Herrera-Iniro v. INS, 208 F.3d 299 (1st Cir. 2000), In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (B.I.A. 2000), and Pickering, 23 I. & N. Dec. at 621.

In Herrera-Iniro, an immigrant argued that his prior conviction should not be operative for immigration purposes, although he conceded that it had been vacated through a rehabilitative program. The court reviewed the legislative history of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), and rejected the argument, noting that "[t]he emphasis that Congress placed on the original admission of guilt plainly indicates that a subsequent dismissal of charges, based solely on rehabilitative goals and not on the merits of the charge or on a defect in the underlying criminal proceedings, does not vitiate that original admission." HerreraIniro, 208 F.3d at 306 (emphasis added).

In Rodriguez-Ruiz, decided a few months after HerreraIniro, the BIA suspended the termination proceedings of an immigrant who had pleaded guilty to a charge of sexual abuse under New York law. Months after the plea, the court that had entered the plea entered an order explicitly vacating it; its order stated:

It is ORDERED, that pursuant to CPL 440,*fn6 the judgment had in this Court on March 24, 1999 based upon a plea colloquy . . . convicting said Defendant of the crime of Sexual Abuse 3rd and the sentence of one (1) year probation are in all respects vacated, on the legal merits, as if said conviction had never occurred and the matter is restored to the docket for further proceedings.

Rodriguez-Ruiz, 22 I. & N. Dec. at 1379. The government argued that this was merely a Roldan situation; the BIA disagreed:

[W]e find that the order of the New York court does not constitute a state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute. The New York criminal law provision under which the respondent's ...

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