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Click here for the full text of this decision FACTS:Ferdinando Discipio, a Brazilian national, became a permanent resident in 1970. In 2002, Discipio was convicted of possession with intent to distribute Percocet by a Massachusetts state court. That conviction was later overturned by an appellate Massachusetts court because of procedural and substantive flaws. The appeals court granted Discipio a new trial. Nevertheless, the government sought to remove Discipio from the country, based on his initial conviction. The immigration judge granted the motion, and the Bureau of Immigration Appeals affirmed. Discipio filed a petition to review and a motion to stay deportation. The government filed a petition to dismiss the petition for lack of jurisdiction. HOLDING:Dismissed for lack of jurisdiction. Using the bulk of the opinion to express its disagreement with the panel decision of Renteria-Gonzalez v. INS, 322 F.3d 804 (5 thCir. 2002), the court rules that it is nevertheless bound to follow it. The case ruled that even a vacated conviction remained valid for purposes of immigration laws. Even though the vacatur at issue was of questionable legitimacy and designed solely to avoid the immigration consequences of the conviction, the court writes, the majority opinion in Renteria-Gonzalez used “too broad a brush” and did not recognize any exception to the general principle. The Renteria-Gonzalez court worried about the use of “unbridled discretion of federal judges” if it allowed the vacatur to override the immigration rules. The court in this case counters by saying that “[w]hen a court vacates a conviction because of defects in the underlying criminal proceeding, however, it is not exercising”unbridled discretion,’ but enforcing the statutory and constitutional rights that ensure fair treatment of criminal defendants.” Under the Renteria-Gonzalez rationale, the court adds, even a person completely exonerated by the courts may nonetheless face removal as a convicted criminal. “We should interpret statutes to avoid results so patently absurd . . . and constitutionally questionable.” The court points out that the Renteria-Gonzalez is out of step with the rest of the circuit courts and the BIA uses the case as support only in the 5 thCircuit. OPINION:Benavides, J.; Jones, Benavides and Clement, JJ.

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