Petitioner-appellant Mario Roberto Madriz-Alvarado, an alien, appeals the denial of his habeas corpus petition under 28 U.S.C. § 2241 seeking to challenge his removal order. We affirm.

Mario Roberto Madriz-Alvarado (Madriz) is a native and citizen of Guatemala who entered the United States without inspection on September 26, 1986, when he was eight years old. On November 14, 1995, Madriz pleaded guilty in a Texas court to possession, on or about October 27, 1995, of less than one gram of lysergic acid diethylamide (LSD) and was granted a deferred adjudication under Texas Code of Criminal Procedure article 42.12 section 5, being placed on probation for five years and fined $500.1 On December 8, 1998, the Immigration and Naturalization Service (INS) charged Madriz with removability, because he was unlawfully present in the United States and because he had been convicted for possession of a controlled substance, under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(2)(A)(i)(II), respectively.2 At his removal hearing, Madriz conceded his removability as an alien present without admission or parole, but contested the charge that his state court controlled substance deferred adjudication was a conviction for immigration purposes. Madriz, informing the Immigration Judge (IJ) that he had an approved visa petition with a current priority date, submitted an application for adjustment of status to that of lawful permanent resident under 8 U.S.C. § 1255(i) as the child of a United States citizen. On May 5, 1999, the IJ sustained both charges of removability, held that by reason of his controlled substance offense Madriz was ineligible for waiver of inadmissibility under 8 U.S.C. § 1255(h) and hence was ineligible for adjustment of status under 8 U.S.C. § 1255(i), and ordered that Madriz be deported to Guatemala. The IJ's decision was upheld by the Board of Immigration Appeals (BIA) in a decision dated December 27, 1999. The BIA specifically rejected Madriz's argument that his controlled substance deferred adjudication was not a conviction for immigration purposes.

On January 27, 2000, Madriz filed with this court a petition for review of the December 27, 1999 order of the BIA. The government moved to dismiss the petition for want of jurisdiction, arguing first that the petition was not timely filed and, alternatively, that pursuant to 8 U.S.C. § 1252(a)(2)(C) this court's jurisdiction over the petition for review was precluded because Madriz was "removable by reason of having committed a criminal offense covered in section 1182(a)(2)." On May 8, 2000, this court granted the government's motion in an order without any statement of reasons or identification of grounds.3

On August 29, 2000, Madriz filed an application for writ of habeas corpus under section 2241 in the United States District Court for the Southern District of Texas, challenging his removal order, arguing that his Texas deferred adjudication was not a conviction because if he had been prosecuted in federal court 18 U.S.C. § 3607 would have precluded so considering it and because in any event it was not final. The petition was dismissed for lack of jurisdiction on November 3, 2000 by Judge Hoyt, who ruled that "the Court lacks jurisdiction because a proper forum exists for petitioner to raise all issues concerning his deportation. That avenue or forum is the court of appeals." Madriz did not appeal that decision.

On November 13, 2000, Madriz filed with the BIA a motion to reopen and reconsider. He relied on the decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. Aug.1, 2000). In Lujan-Armendariz the Ninth Circuit reversed in part the BIA's decision in Matter of Roldan-Santoyo, 22 I & N Dec. 512 (BIA 1999), on which the BIA had relied in its December 27, 1999 dismissal of Madriz's appeal from the May 5, 1999 decision of the IJ. As the BIA noted in its April 19, 2002 memorandum denying the motion to reopen and reconsider, Madriz filed with that motion "a copy of an order from the Texas criminal court dated June 9, 1999, terminating his probation after successful completion, and dismissing the drug possession complaint against him pursuant to article 42.12, § 5 of the Texas Code of Criminal Procedure."4 The government opposed Madriz's motion to reconsider and reopen on the ground, among others, that it was untimely. The BIA, by its April 9, 2002 decision, denied the motion to reconsider and to reopen, noting that the regulations, 8 C.F.R. §§ 3.2(b) & 3.2(c), required filing within thirty and ninety days, respectively, of the date of the final administrative decision, which was December 27, 1999, and that the November 13, 2000 "motion to reopen and reconsider is therefore untimely." The BIA's decision further held that Madriz "has failed to show that an exceptional situation warrants our consideration of his untimely motion to reopen and reconsider in the exercise of discretion," noting that in Matter of Salazar-Regino, 23 I & N Dec. 223 (BIA 2002) the BIA had held that the decision in Lujan-Armendariz would not be applied to cases arising outside of the Ninth Circuit and that, except where Lujan-Armendariz applied, Matter of Roldan-Santoyo would continue to govern. Madriz did not seek to appeal the BIA's April 9, 2002 denial of his motion to reconsider and reopen.

On May 9, 2002, Madriz filed the instant habeas petition, arguing that his Texas state court deferred adjudication for possession of LSD was not a conviction for immigration purposes. Respondents moved for summary judgment, arguing that the district court lacked subject matter jurisdiction and, alternatively, that Madriz was not entitled to relief on the merits. Madriz filed a cross-motion for summary judgment, claiming that the district court did have jurisdiction over his section 2241 application and that he was entitled to relief because his removal order was a violation of due process and equal protection. The district court referred the matter to a U.S. Magistrate Judge who concluded on October 18, 2002, that the district court did have jurisdiction to entertain the section 2241 habeas application, but recommended that Madriz's application be denied on the merits. The district court, Judge Werlein, adopted the recommendation over Madriz's objections and entered final judgment on December 4, 2002. Madriz timely appealed.

The district court's legal determinations, including those concerning jurisdiction, are reviewed de novo. Rivera-Sanchez v. Reno, 198 F.3d 545, 546 (5th Cir.1999). Dismissal of a habeas corpus petition on summary judgment is reviewed de novo on appeal. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir.2000).

If the governing immigration statute does not speak clearly to the question before the court, the BIA's interpretation of ambiguities therein will be upheld if that interpretation is reasonable. Wilson v. INS, 43 F.3d 211, 213 (5th Cir.1995).

The government argues that the district court lacked jurisdiction to entertain Madriz's habeas petition because Madriz was found removable by reason of having committed an offense covered in 8 U.S.C. § 1182(a)(2)(A)(i)(II), and because 8 U.S.C. § 1252(a)(2)(C) provides that "no court shall have jurisdiction to review any final order of removal against an alien by reason of having committed an offense covered in section 1182(a)(2)." Madriz responds that in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 2278-87, 150 L. Ed. 2d 347 (2001), the Court held section 1252(a)(2)(C) did not preclude resort to habeas relief under section 2241. The government contends that St. Cyr does not control where all the issues raised in the section 2241 petition could have been resolved by a court of appeals in ruling on a petition for review of the BIA's order,5 and that the only issue raised by Madriz in his habeas petition — namely that his Texas deferred adjudication does not, and may not constitutionally, constitute a conviction under section 1182(a)(2)(A)(i)(II) or otherwise render him removable thereunder — could have been resolved by this court in ruling on its jurisdiction to consider a petition for review of the BIA's decision (or decisions) in his case. See, e.g., Santos v. Reno, 228 F.3d 591, 597 (5th Cir.2000); see also Flores-Garza v. INS, 328 F.3d 797, 802 (5th Cir.2003).6 We pretermit this jurisdictional issue because it has no effect on the disposition of this case inasmuch as we conclude that the district court correctly dismissed Madriz's habeas petition on the merits. See Seale v. INS, 323 F.3d 150, 152-57 (1st Cir.2003) (pretermitting the same issue for essentially the same reasons). See also Texas Employers' Ins. Ass'n v. Jackson, 862 F.2d 491, 497 n. 8 (5th Cir.1988) (en banc) (pretermitting issue of district court's jurisdiction since relief properly denied on merits).7

3. Madriz's deferred adjudication as a ground for removal

(a) Introduction

Madriz contends that his November 1995 Texas deferred adjudication for possession of LSD is not a conviction, or grounds for removal, under section 1182(2)(A)(i)(II), see note 2 supra, for basically two reasons:

(1) that it was not a "conviction" because it was not final and did not meet the definition of conviction stated in Matter of Ozkok, 19 I & N Dec. 546 (BIA 1988), and applied to deferred adjudications under Tex.Code Crim. Proc. art. 42.12 Sec. 5 in Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir.1990), in that on violation of his community supervision he could not be convicted or sentenced for the underlying offense without a trial leading to formal adjudication of guilt and sentence, with right of appeal, and the proceedings against him were ultimately dismissed and he was discharged in June 1999 on completion of his community supervision; and

(2) that under the rule of In Re Manrique, 21 I & N Dec. 58 (BIA May 19, 1995), and Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.2000), Madriz's Texas deferred adjudication for possession of LSD, even if it were otherwise a final conviction for immigration purposes, would not be so treated because it was his first drug offense and had it been prosecuted in federal court Madriz would have been eligible for favorable treatment, and ultimate expungement of conviction, under the Federal First Offender Act (FFOA), 18 U.S.C. § 3607.8

In holding that Madriz's deferred adjudication was a conviction for purposes of section 1182(2)(A)(i)(II), the BIA relied on 8 U.S.C. § 1101(a)(48)(A), enacted September 30, 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3309-546, which contained comprehensive amendments to the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. §§ 1101 et seq. Section 1101(a) provides definitions for diverse terms "[a]s used in this chapter," namely Chapter 12 of the INA, 8 U.S.C. §§ 1101-1537. Prior to the enactment of IIRIRA, the INA contained no definition of "conviction" (nor was there otherwise any federal statutory definition of "conviction" for purposes of the immigration laws). Section 322(a) of IIRIRA, 110 Stat. 3009-628, amended section 1101(a) by adding thereto the following definition, codified as section 1101(a)(48)(A):

"(48)(A) 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 of guilty, and

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

Section 332(c) of IIRIRA, 110 Stat. 3009-629, provides that "[t]he amendments made by subsection (a) shall apply to convictions and sentences before, on, or after the date of enactment of this Act."9

(b) Does section 1101(a)(48)(A) by its terms render Madriz's deferred adjudication a conviction for immigration law purposes and, if so, does such application of section 1101(a)(48)(A) violate Madriz's constitutional rights?

(i) The language of section 1101(a)(48)(A) covers the deferred adjudication.

Madriz in November 1995 pled guilty to the LSD possession offense, and the Texas judge, pursuant to Tex.Code Crim. Proc. art. 42.12 sec. 5 (see note 1, supra), accepted the plea, heard evidence, found that it substantiated Madriz's guilt, fined him $500 and placed him on five years probation under community supervision, but withheld "adjudication of guilt."10 According to Madriz, on June 9, 1999, the Texas court dismissed the proceedings against him and discharged him on completion of his community supervision pursuant to the provisions of article 42.12 § 5(a) (see notes 1 and 4 supra). Under our holding in Moosa v. INS, 171 F.3d 994, 998 & n. 2, 1005-06 (5th Cir.1999), "[t]he text of § 322(a) [§ 1101(a)(48)(A)] could not be more clear" and Madriz's 1995 deferred adjudication constitutes a conviction thereunder, and does so notwithstanding the 1999 dismissal of the charges and discharge of Madriz pursuant to article 42.12 section 5(c) and notwithstanding the provision of article 42.12 section 5(c) that such "a dismissal and discharge under this section may not be deemed a conviction for purposes of disqualifications or disabilities imposed by law for conviction of an offense." See also Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir.2000), noting that the "language" of section 1101(a)(48)(A) "leaves nothing to the imagination," id. at 304, and approving Moosa, id. at 306, 308;11 Renteria-Gonzalez v. INS, 322 F.3d 804, 812-14, 815 (5th Cir.2002); id. at 820-22 (Benavides, J., specially concurring); Vasquez-Velezmoro v. INS, 281 F.3d 693, 696-99 (8th Cir.2002).

(ii) No implied exception for offenders eligible for FFOA disposition if federally prosecuted

Madriz further argues in this connection that as the Ninth Circuit held in Lujan-Armendariz, the FFOA (section 3607; see note 8 supra) was not repealed or limited in application by section 1101(a)(48)(A) so that one whose federal drug charges have been dismissed thereunder would not be considered to have been convicted for purposes of the immigration laws, and that hence an implied exception should be read into section 1101(a)(48)(A) for state deferred adjudications of first offenders for offenses which if prosecuted in federal court would have been eligible for disposition under the FFOA. Even assuming, arguendo only, that the provision of the FFOA (§ 3607(b)) that a deferred adjudication and subsequent dismissal thereunder "shall not be considered a conviction for the purposes of a disqualification or disability imposed by law upon conviction of a crime, or for any other purpose" precludes application of the section 1101(a)(48)(A) definition of conviction to a 21 U.S.C. § 844 proceeding dismissed under the FFOA,12 such a consequence would result only from the applicability of the FFOA to the putative conviction in question and would not to any extent result from any analysis of or ambiguity in the language of section 1101(a)(48)(A). The section 1101(a)(48)(A) definition of conviction, expressly directed to situations where "adjudication of guilt is withheld," "could not be more clear," "leaves nothing to the imagination" and affirmatively and unambiguously includes Madriz's deferred adjudication under Tex.Code of Crim. Proc. art. 42.12 sec. 5. There is simply no warrant, as a matter of statutory interpretation, to make up out of whole cloth some implied exception for state deferred adjudications on the basis of an analogy to section 3607.13 We agree with the several other courts of appeals that have rejected the same argument that Madriz advances here. See Gill v. Ashcroft, 335 F.3d 574, 579 (7th Cir.2003) ("It is enough to say that § 3607 has no residual effect on the appropriate characterization of state-law deferred dispositions. These are handled comprehensively, and exclusively, by § 1101(a)(48)(A)");14 Acosta v. Ashcroft, 341 F.3d 218, 225-26 (3d Cir.2003); Vasquez-Velezmoro, 281 F.3d at 696-99; Fernandez-Bernal v. Attorney General, 257 F.3d 1304 (11th Cir.2001).15

(iii) Equal protection

Madriz further argues that his contentions in this respect, even if not supportable as a matter of statutory construction, are constitutionally compelled by the equal protection component of the Fifth Amendment's due process clause. Again relying on Lujan-Armendariz, he contends that section 3607 continues to govern what constitutes a conviction for immigration law purposes and that it denies him equal protection to treat his Texas deferred adjudication as a conviction when had his offense been prosecuted in federal court he would have been eligible for deferred adjudication and dismissal under section 3607. Assuming, arguendo only, that section 3607 controls over section 1101(a)(48)(A) for purposes of determining whether a federal offense disposed of under section 3607 is a conviction for immigration law purposes, we nevertheless reject this equal protection contention, as have all the courts of appeals which have considered it, other than the Ninth Circuit.

In light of Congress's plenary power to pass legislation concerning the admission or exclusion of aliens, it is clear that no more searching review than that of rational basis is appropriate. See, e.g., Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 1478, 52 L. Ed. 2d 50 (1977) ("[T]he power to expel or exclude aliens ... [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.") (citation and internal quotation marks omitted); Demore v. Kim, 538 U.S. 510, 123 S. Ct. 1708, 1711, 155 L. Ed. 2d 724 (2003) ("[I]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.") (citation and internal quotation marks omitted).16 Under rational basis review, differential treatment "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, 508 U.S. 307, 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993). See also, e.g., Acosta, 341 F.3d at 226-27; Vasquez-Velezmoro, 281 F.3d at 697.

We agree with the Third Circuit's Acosta opinion that the equal protection challenge is without merit because

"[f]amiliar with the operation of the federal criminal justice system, Congress could have thought that aliens whose federal charges are dismissed under the FFOA are unlikely to present a substantial threat of committing subsequent serious crimes. By contrast, Congress may have been unfamiliar with the operation of state schemes that resemble the FFOA. Congress could have worried that state criminal justice systems, under the pressure created by heavy case loads, might permit dangerous offenders to plead down to simple possession charges and take advantage of those state schemes to escape what is considered a conviction under state law." Acosta, 341 F.3d at 227.

Essentially the same reasoning was employed in Vasquez-Velezmoro to reject the similar equal protection challenge made there (involving a 1988 Texas deferred adjudication under Tex.Code Crim. Proc. art. 42.12 for possession of a controlled substance).17

There is a further reason that Madriz's equal protection argument fails. That argument assumes, in effect, that if the state judge who granted Madriz deferred adjudication under Tex.Code Crim. Proc. art. 42.12 sec. 5 had been a federal judge and Madriz had been prosecuted for his LSD possession in federal court under 21 U.S.C. § 844(a), the judge would have granted him deferred adjudication under section 3607. Of course, deferred adjudication under section 3607 is discretionary with the court. However, the state judge in Madriz's case determined that the appropriate sentence was five years' probation (and a $500 fine), but deferred adjudication under section 3607 is limited to instances where the court places the defendant "on probation for a term of not more than one year" (and there is no provision for a fine). The judge who thought five years' probation appropriate might well have for that reason declined to grant deferred adjudication under section 3607.18 Thus, in Fernandez-Bernal, the Eleventh Circuit rejected the alien's similar equal protection argument, stating:

"Fernandez-Bernal could not have received FFOA expungement relief, because he was actually sentenced to two years of probation, as well as a term in jail. Relief under FFOA § 3607(b) is not available to an individual sentenced to a term of probation that exceeds one year; nor is it available to anyone sentenced to jail time." Id. at 1316.

...

"We conclude that Fernandez-Bernal's drug offense could not have been expunged under the FFOA had he received his sentence under federal law and, therefore, the BIA did not violate equal protection in ordering him removed from the United States." Id. at 1317 (footnote omitted).

In Vasquez-Velezmoro, the Eighth Circuit rejected an identical equal protection challenge to the application of section 1101(a)(48)(A) to a 1986 deferred adjudication under Tex.Code Crim. Proc. art. 42.12 for possession of a controlled substance, in which the alien was placed on probation for ten years but two years later was permitted to withdraw his guilty plea, the indictment was dismissed and the conviction was set aside. 281 F.3d at 695. The court expressly agreed with the above noted rational of Fernandez-Bernal. Vasquez-Velezmoro, 281 F.3d at 698. The court concluded that "treating petitioner differently from an alien whose conviction was expunged under the FFOA is not arbitrary or unreasonable. His sentence was much greater than allowed under the FFOA, so he is not similarly situated to aliens who receive relief under that statute." Id. at 699.19

For the reasons above stated, we reject Madriz's equal protection claims.

(iv) Does section 1101(a)(48)(A), by its terms and the terms of IIRIRA section 322(c) apply to deferred adjudications before its enactment?

Madriz makes various arguments that the terms of section 322(c) are an insufficiently clear expression of congressional intent to warrant application of section 1101(a)(48)(A) to deferred adjudications entered prior to the enactment of IIRIRA. We rejected all these arguments in Moosa, 171 F.3d at 1006-08. Madriz urges that St. Cyr in effect supercedes this portion of Moosa. We disagree. In St. Cyr, the Court noted IIRIRA section 322(c) — and other similarly worded sections of IIRIRA — as constituting instances in which Congress did "indicate unambiguously its intention to apply specific provisions retroactively." St. Cyr, 121 S.Ct. at 2289 & n. 43 (quoting section 322(c)). St. Cyr clearly supports, rather than undercuts, Moosa's holding in this respect. Several courts of appeals have upheld the application of section 1101(a)(48)(A) to deferred adjudications entered before the enactment of IIRIRA, see, e.g. Acosta, 341 F.3d at 220-21 & n. 3 (October 1995 Pennsylvania heroin possession deferred adjudication based on nolo plea); Vasquez-Velezmoro, 281 F.3d at 695 (1986 controlled substance possession deferred adjudication under Tex.Code Crim. Proc. art. 42.12 based on guilty plea); Fernandez-Bernal, 257 F.3d at 1305-06 (nolo contendere based 1991 California deferred adjudication for cocaine possession). We are not aware of court of appeals holdings to the contrary.

(v) Constitutionality of retroactive application of section 1101(a)(48)(A)

Madriz contends that it is unconstitutional to apply section 1101(a)(48)(A), enacted in 1996, to his 1995 deferred adjudication, because at the time of the deferred adjudication it was not considered a conviction by reason both of Ozkok and Manrique. We reject this contention as we did the similar contention in Moosa where we noted that "`it is well settled that Congress has the authority to make past criminal activity a new ground for deportation.'" 171 F.3d at 1009 (quoting Ignacio v. INS, 955 F.2d 295, 298 (5th Cir.1992)). See also, e.g., Mulcahey v. Catalanotte, 353 U.S. 692, 77 S. Ct. 1025, 1026-27, 1 L. Ed. 2d 1127 (1957); Marcello v. Bonds, 349 U.S. 302, 75 S. Ct. 757, 764, 99 L. Ed. 1107 (1955). Indeed Congress can do so even for past antisocial conduct that not only did not result in a conviction but was not even criminal when engaged in. See Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 742, 98 L. Ed. 911 (1954) (membership in communist party from 1944 to 1946, made a ground for deportation in 1950 without formerly required proof in particular case that party advocated violent overthrow of the U.S. government, properly applied to alien who was unaware of the party's advocacy of violence); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 (1952) (membership in communist party which terminated prior to enactment of statute making it a ground for deportation, as to alien unaware of party's commitment to violence); United States v. Sahli, 216 F.2d 33, 40-41 (7th Cir.1954).

Madriz further argues in this connection that his 1995 guilty plea in the deferred adjudication must necessarily be considered constitutionally infirm because at the time the deferred adjudication was not a conviction for immigration law purposes and he could not have known that it would become so by the 1996 enactment of IIRIRA. However, it has long been settled that a plea is not rendered constitutionally infirm because the defendant was not aware of the immigration consequences of a conviction pursuant thereto or because counsel or the court failed to advise him thereof. United States v. Banda, 1 F.3d 354, 356 (5th Cir.1993); United States v. Holton, 228 F.2d 827, 830 (7th Cir.1956); WRIGHT, Federal Practice and Procedure: Criminal 3rd § 173 at 192 n. 54.

We note that Madriz's LSD charge was dismissed solely as a result of his satisfactory completion of his sentence to probation as contemplated by Tex.Code Crim. Proc. art. 42.12, and not to any extent because of the merits of the charge, or any question as to Madriz's guilt thereof (which he has never denied) or on account of any defect in the underlying proceedings or any question as to the validity of his guilty plea therein.20

We likewise reject Madriz's reliance on St. Cyr's holding that the provisions of IIRIRA section 304(b), eliminating the eligibility for discretionary relief under INA § 212(c) as to aliens convicted of certain crimes, did not apply to aliens convicted of such offenses (pursuant to plea bargains) prior to the enactment of IIRIRA. As previously observed, this holding was not based on constitutional grounds, but was rather grounded on the Court's view that the language of the statute was not sufficiently express or explicit in that respect.21

Madriz's constitutional arguments respecting the retroactive application of section 1101(a)(48)(A) lack merit.

For the reasons stated above, the district court's dismissal of Madriz's section 2241 habeas petition is

AFFIRMED.