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Following a 2002 Massachusetts conviction for possession with intent to distribute Percocet, Ferdinando Discipio, a Brazilian native who had been a U.S. permanent resident for more than 30 years, was shipped to Texas for deportation processing. That destination was not merely fortuitous, Discipio’s attorney, Boston solo practitioner Anthony Drago, suggested in an interview. “I honestly believe the government was forum shopping.” Discipio differed from most other immigrants convicted of a felony, who are all but guaranteed deportation under the Immigration and Nationality Act, in that his conviction had been overturned by a second Massachusetts court “because of procedural and substantive flaws in the underlying proceeding,” said Judge Fortunato Benevides of the 5 th U.S. Circuit Court of Appeals. Benevides wrote the April 29 decision for the unanimous panel that heard Discipio v. Ashcroft, No. 04-60268. It is only in the 5 th Circuit, Benevides and Drago agree, that a conviction vacated on the merits can still be a ground for deportation. ‘Renteria-Gonzalez’ The panel had no choice but to leave Discipio’s deportation order undisturbed because of a 2002 panel decision, Renteria-Gonzalez v. INS, 322 F.3d 804, that put “our Circuit . . . out of step with the rest of the nation,” Benevides wrote. In Renteria-Gonzalez, Judge Jerry E. Smith, writing for a two-member majority, noted that the relevant section of the act, codified at 8 U.S.C. 1101(a)(48)(A), defines “conviction” as either a formal entry of a conviction or as a finding of sufficient facts to support a conviction (thus subjecting to deportation aliens who avoid a formal strike on their record by agreeing to maintain good behavior during a probationlike period). Smith pointed to decisions by five other circuits holding that vacated convictions counted as grounds for deportation. He noted that Congress created no express exception for vacated convictions, though it did make exception for executive pardons. Finally, he argued that if discretion were needed in the system, it was better exercised by the executive branch than by the judiciary, because of foreign-relations implications. Smith’s 2002 opinion was concurred in by none other than Benevides. He agreed that Ricardo Renteria-Gonzalez had no right to remain in the United States because his conviction had been overturned for reasons other than defects in his trial. But Benevides wrote separately to warn that Smith’s sweeping language might in other circumstances lead to the “absurd result [of interpreting the act] to encompass convictions that state or federal courts have deemed deficient on the merits.” Benevides disputed Smith’s headcount of the other circuits, arguing that the five decisions dealt only with convictions vacated for “rehabilitative” reasons, not on the merits, and noting that two circuit courts had recognized such a distinction (he renewed those arguments in his April opinion). Oddly, Benevides in 2002 argued that Smith’s interpretation was mere dicta, whereas in this year’s opinion he claimed to be bound by it. Perhaps he hopes to force a circuitwide change, rather than merely granting relief to Discipio (the panel stayed Discipio’s deportation in the event of en banc review). Drago said that judging by the number of calls he’s received about the case, his client is not alone. Young’s e-mail address is [email protected].

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