Jose Lemus v. Loretta E. Lynch ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE DANIEL LEMUS, No. 12-73654
Petitioner,
Agency No.
v. 099-711-900
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 21, 2015
Pasadena, California
Filed November 16, 2016
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges, and Michael A. Ponsor,* Senior District
Judge.
Opinion by Judge Ponsor
*
The Honorable Michael A. Ponsor, Senior District Judge for the
U.S. District Court for Massachusetts, sitting by designation.
2 LEMUS V. LYNCH
SUMMARY**
Immigration
The panel denied Jose Daniel Lemus’s petition for review
from the Board of Immigration Appeals’ decision
retroactively applying to him the holding in Holder v.
Martinez Gutierrez, 132 S. Ct. 2011 (2012), that an applicant
for cancellation of removal must satisfy the years-of-
residence requirement on his own, without relying on a
parent’s residential history.
Petitioner contended that Martinez Gutierrez announced
a new rule of law and that, under Chevron Oil Co. v. Huson,
4040 U.S. 97 (1971), its holding should not be applied
retroactively to him. The panel held that because it was
deferring to the BIA’s decision in Matter of Escobar, 24 I. &
N. Dec. 231 (BIA 2007), as directed by the Supreme Court,
rather than adopting a new rule on its own, the retroactivity
analysis set forth in Montgomery Ward & Co., Inc. v. FTC,
691 F.2d 1322 (9th Cir. 1982), applied rather than that of
Chevron Oil. The panel held that the second Montgomery
Ward factor, which favors retroactivity if a party could
reasonably anticipate the change in law, and the third factor,
which examines the extent of reliance upon the former rule,
weighed heavily against Lemus. The panel further found that
the fifth factor favored the government’s strong interest in
uniform application of the immigration statutes.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEMUS V. LYNCH 3
COUNSEL
Florence Weinberg (argued) and Andrew K. Nietor, San
Diego, California, for Petitioner.
Carmel A. Morgan (argued) and Gray J. Newkirk, Trial
Attorneys; Luis E. Perez, Senior Litigation Counsel; Office
of Immigration Litigation, Civil Division, Washington, D.C.;
for Respondent.
OPINION
PONSOR, Senior District Judge:
In Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012),
the Supreme Court unanimously held that the Board of
Immigration Appeals (“BIA”) permissibly construed section
240A(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(a), when it concluded that an alien seeking
cancellation of removal had to satisfy the years-of-residence
requirement on his own, without relying on a parent’s
residential history. Id. at 2014–15. Petitioner Lemus
contends that Martinez Gutierrez announced a new rule of
law and that, under Chevron Oil Co. v. Huson, 404 U.S. 97(1971), its holding should not be applied retroactively to him.
We disagree. Lemus’s citation of Nunez-Reyes v. Holder,
646 F.3d 684 (9th Cir. 2011) (en banc), in support of his
argument for prospective application of Martinez Gutierrez
is not persuasive. In Nunez-Reyes, we applied Chevron Oil’s
retroactivity analysis, because we ourselves were explicitly
adopting a new rule, setting aside our own longstanding
circuit precedent. Id. at 692. Where, as here, we are adopting
4 LEMUS V. LYNCH
no new rule on our own, but merely (at the direction of the
Supreme Court) deferring to the BIA, Chevron Oil’s
retroactivity criteria are inapplicable.
Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir.
2012) (en banc), offers a more compelling precedent on the
issue of retroactivity. In that case, we did not announce a
new rule on our own authority, as in Nunez-Reyes, but rather
deferred to a rule previously announced by the BIA, as
Martinez Gutierrez has instructed us to do here. Garfias-
Rodriguez held that in this situation the proper approach to
the issue of retroactivity is set forth in Montgomery Ward &
Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982). 702 F.3d at
520. Applying Montgomery Ward, we hold that Martinez
Gutierrez should be applied retroactively. Based on this, we
will deny the petition.
I. FACTS AND PROCEDURAL HISTORY
Petitioner Jose Daniel Lemus is a Guatemalan citizen who
entered the United States as a four-year-old in 1993 with his
mother. In 2006, after Lemus turned eighteen, he became a
legal permanent resident through his stepfather. On April 3,
2011, Lemus was crossing by car from Mexico to Calexico,
California when a routine sweep uncovered nearly fifty
pounds of marijuana in his vehicle’s rear panels. Lemus was
initially charged with importation of marijuana and held in
custody. On June 7, 2011, he pleaded guilty to one count of
making a materially false statement to a federal officer in
violation of 18 U.S.C. § 1001. On July 1, 2011, he was
sentenced to time served. Four days later, he was transferred
into the custody of the Department of Homeland Security and
was thereafter placed into removal proceedings, charged with
LEMUS V. LYNCH 5
being inadmissible as an alien who was or had been a
trafficker in illicit controlled substances.
In proceedings before the IJ, Lemus admitted that he was
involved in drug trafficking and was to be paid $3,000 for his
thwarted attempt to bring marijuana into the United States.
Nevertheless, he sought relief through an application for
cancellation of removal, a course available to certain
permanent residents. Section 240(A)(a) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1229b(a), authorizes
the Attorney General to cancel the removal of a person who:
“(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years; (2) has resided in the
United States continuously for 7 years after having been
admitted in any status; and (3) has not been convicted of any
aggravated felony.”
The government argued that Lemus was not eligible for
this relief because he had not fulfilled the seven-year
continuous residency requirement. Lemus acknowledged that
he could not independently satisfy this requirement, since he
had only been a legal resident for approximately five years
when he pleaded guilty to the false statement charge.1 He
argued, however, that by imputing his stepfather’s years of
residency to himself, he could satisfy the requisite number of
years needed to qualify.
At the time of the proceeding before the IJ, this
imputation was permitted—in the teeth of the BIA’s vigorous
1
The stop-time rule provides that an alien’s period of continuous
residence is deemed to end when he is served with a notice to appear or
is convicted of certain criminal offenses, including a controlled substance
violation. 8 U.S.C. § 1229b(d)(1).
6 LEMUS V. LYNCH
disagreement—under the authority then prevailing in the
Ninth Circuit. See Mercado-Zazueta v. Holder, 580 F.3d
1102 (9th Cir. 2009); Cuevas-Gaspar v. Gonzales, 430 F.3d
1013 (9th Cir. 2005). A dispute nevertheless arose at the
hearing before the IJ, not about the principle of imputing a
parent’s residential history, but about whether Lemus’s
stepfather had actually acquired enough countable years to
allow Lemus to satisfy the residency requirement. The IJ’s
inquiry therefore necessarily focused on when the stepfather
had actually been admitted for purposes of this calculation.
Lemus argued before the IJ that his stepfather was
admitted as part of the family unity program, which would
have meant that, under Ninth Circuit authority, Lemus could
count his stepfather’s years in presenting his case for
cancellation. The government disagreed, contending that the
stepfather’s admission was based on a deferred action
decision, which would have precluded Lemus from imputing
his stepfather’s residential history. In order to clarify the
historical picture, Lemus’s lawyer asked the IJ to order the
government to produce the stepfather’s Alien Registration
File (“A-File”).2 The IJ continued the case in the hope that
the government would locate and turn over the A-File, but the
government ultimately failed to do this.
At the final hearing before the IJ, on April 17, 2012, the
principal issue was the date upon which Lemus’s stepfather
was admitted. The IJ sided with the government and found
Lemus ineligible for cancellation of removal. The IJ also
2
The A-File “contains the official record material about each
individual for whom DHS has created a record.” U.S. v. Lopez, 762 F.3d
852, 856 n.1 (9th Cir. 2014) (quoting 76 Fed. Reg. 34233, 34236 (June 13,
2011)).
LEMUS V. LYNCH 7
held that he had no authority to require the Department of
Homeland Security to produce the stepfather’s A-File, and he
ordered Lemus removed.
Lemus appealed the IJ’s ruling to the BIA where, again,
the central issue initially was whether Lemus could take
advantage of his stepfather’s residential history to satisfy the
eligibility requirements for his application for cancellation of
removal. Lemus conceded, as he did before the IJ, that he
could not independently meet the seven-year residency
requirement.
While the BIA appeal was pending, the Supreme Court
issued its decision in Holder v. Martinez Gutierrez. In its
unanimous decision, the Supreme Court reversed the line of
Ninth Circuit decisions that allowed imputation of a parent’s
years of residency under 8 U.S.C. § 1229b(a), instead holding
that the BIA’s contrary construction of the statute, as set forth
in Matter of Escobar, 24 I. & N. Dec. at 235, was reasonable
and therefore entitled to deference. Martinez Gutierrez,
132 S. Ct. at 2021. In Escobar, the BIA had interpreted the
statute as requiring that an alien satisfy the years of residency
requirement independently, without imputing a parent’s
residence period. 24 I. & N. Dec. at 234–35.
Lemus argued to the BIA, as he does here, that Martinez
Gutierrez should not apply retroactively to him in light of the
contrary Ninth Circuit precedent controlling on June 7, 2011,
when he pleaded guilty to making a materially false
statement. Lemus contended that he would have proceeded
differently in his criminal case if he had known that his plea
would render him ineligible for cancellation of removal.
Lemus further argued before the BIA that, since (in his view)
Martinez Gutierrez should not apply retroactively, his
8 LEMUS V. LYNCH
stepfather’s residency ought to be imputed to him and that, if
there was any uncertainty regarding his stepfather’s
residency, the government should be required to produce his
stepfather’s A-File to clear up the confusion.
The BIA concluded that Martinez Gutierrez foreclosed
any argument for imputation, rejecting Lemus’s contention
that it should not be applied retroactively. The BIA reasoned
that because retroactivity is the default rule, and none of the
limited circumstances justifying departure from that rule was
present in Lemus’s case, Lemus could not avoid retroactive
application of Martinez Gutierrez. The BIA therefore
affirmed the IJ’s denial of relief. The BIA also ruled that,
without the right to impute his stepfather’s residency, Lemus
could not claim prejudice based on any denial of access to his
stepfather’s A-File.
Lemus has appealed the decision of the BIA to this court.
He argues that Martinez Gutierrez should not apply to him
and that this court should remand this matter to the IJ for a
hearing on the question whether Lemus is eligible for
cancellation of removal. He also seeks a determination by
this court that the IJ’s refusal to require the government to
produce his stepfather’s A-File prejudiced him and that, on
remand, the government must produce the file.
II. JURISDICTION AND STANDARD OF REVIEW
Our jurisdiction derives from 8 U.S.C. § 1252(a)(1),
which authorizes judicial review of final orders of removal,
and § 1252(a)(2)(D), which authorizes review of questions of
law. The question now before us, regarding the retroactivity
of Martinez Gutierrez, raises a pure issue of law, which we
review de novo. Garfias-Rodriguez, 702 F.3d at 512 n.6.
LEMUS V. LYNCH 9
III. DISCUSSION
The issue here is straightforward. The parties agree that,
without relying on his stepfather’s residential history, Lemus
is ineligible for cancellation of removal. Martinez Gutierrez
held that the BIA’s construction of the underlying statute
barring such reliance was reasonable and that we are obliged
to defer to it. If Martinez Gutierrez is retroactive, then
Lemus is ineligible for cancellation of removal, and this
petition must be denied.
In Martinez Gutierrez, Justice Kagan recounted the
dialogue between the BIA and the Ninth Circuit Court on the
issue of imputation. 132 S. Ct. at 2015–18. As of 2011,
when Lemus was apprehended with the nearly fifty pounds of
marijuana and pleaded guilty to making a false statement, this
controversy had been going on for at least six years. In 2005,
in Cuevas-Gaspar, the Ninth Circuit declined to follow the
BIA’s restrictive construction of the statute on the issue of
imputation. 430 F.3d at 1026. In 2007, in In re Escobar, the
BIA expressly disagreed with Cuevas-Gaspar with respect to
allowing imputation to satisfy the seven-year residency
requirement under § 1229b(a)(2), declining to follow it
outside the Ninth Circuit, and also holding that imputation
was impermissible to satisfy the five-year lawful permanent
residency requirement under §1229b(a)(1) in all jurisdictions.
24 I. & N. Dec. at 235. In 2008, the BIA went a step further
in Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (BIA
2008), again rejecting Cuevas-Gaspar, but—relying on the
Supreme Court’s decision in National Cable &
Telecommunications Ass’n v. Brand X Internet Services,
545 U.S. 967 (2005)—adding that even in the Ninth Circuit,
the BIA would follow its decision in In re Escobar, disallow
imputation to satisfy §1229b(a)(2), and not apply contrary
10 LEMUS V. LYNCH
Ninth Circuit authority. Id. at 600–01. In 2009, the Ninth
Circuit, in Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th
Cir. 2009), “doubled down” (as Justice Kagan put it) on its
Cuevas-Gaspar holding. Martinez Gutierrez, 132 S. Ct. at
2016. Mercado-Zazueta expressly held that the BIA’s
construction of the statute barring imputation was not
reasonable and therefore not entitled to deference. 580 F.3d
at 1112–13.
In sum, by 2011 when Lemus was taken into custody, the
imputation controversy between the BIA and the Ninth
Circuit was prominent in the landscape of immigration law.
Along with the BIA, two other circuits had already parted
company with the Ninth Circuit and deemed the BIA’s
approach to imputation a reasonable construction of
§ 1229b(a). See Deus v. Holder, 591 F.3d 807 (5th Cir.
2009); Augustin v. Attorney Gen., 520 F.3d 264 (3d Cir.
2008).
Martinez Gutierrez addressed two consolidated cases
from the Ninth Circuit involving aliens seeking cancellation
of removal under circumstances essentially identical to those
before us now. As here, neither alien could meet the
eligibility requirements for cancellation without relying on a
parent’s residential history. 132 S. Ct. at 2016–17. The
Court held that the BIA’s interpretation of § 1229b(a) was in
accord with the statute’s text which “does not mention
imputation, much less require it.” Id. at 2017. Justice Kagan
noted that the hypothetical possibility of some other
reasonable construction of the statute was irrelevant because
the BIA’s construction “prevails if it is a reasonable
construction of the statute, whether or not it is the only
possible interpretation or even the one a court might think
best.” Id. Because the BIA’s interpretation was “based on a
LEMUS V. LYNCH 11
permissible construction of the statute,” the Court reversed
the Ninth Circuit judgments. Id. at 2021 (quoting Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
(1984)).
Significantly, on remand, this court in separate
dispositions applied Martinez Gutierrez to both aliens, ruling
that neither was eligible for cancellation of removal. See
Sawyers v. Holder, 684 F.3d 911, 912 (9th Cir. 2012) (per
curiam) (rejecting imputation because Cuevas-Gaspar and
Mercado-Zazueta were “no longer valid precedent”);
Martinez Gutierrez v. Holder, 474 Fed. App’x 587, 588 (9th
Cir. July 11, 2012) (unpublished decision) (citing Sawyers).
Neither the Supreme Court, nor the Ninth Circuit in its two
decisions on remand, made any explicit mention of the issue
of retroactivity.
Lemus argues that he relied on the then-controlling
authority of this court in 2011 when he made the decision to
plead guilty and exposed himself to a risk of removal. He
now says that, had he known that he would be ineligible for
cancellation of removal, he might not have pleaded guilty and
might instead have opted to hold the government to its burden
to prove the charge against him beyond a reasonable doubt.
Lemus’s argument runs immediately afoul of the default
rule that “a court’s decisions apply retroactively to all cases
still pending before the courts.” Nunez-Reyes, 646 F.3d at
690. While Chevron Oil suggested, forty-five years ago, that
in limited instances, departure from the default retroactivity
rule might be countenanced, 404 U.S. at 106–07, we have
noted that more recent Supreme Court authority “could
support a conclusion that the Chevron Oil test no longer
applies in any circumstances: all new rules of law must be
12 LEMUS V. LYNCH
applied retroactively.” Nunez-Reyes, 646 F.3d at 691 (citing,
among other cases, Harper v. Va. Dep’t of Taxation, 509 U.S.
86 (1993)).
Two recent, carefully articulated en banc decisions of this
court make it clear that the analysis of retroactivity set forth
in Chevron Oil is not applicable to this case.
In Nunez-Reyes, we set aside a well-established circuit
precedent, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000), which had held that a state conviction for a simple-
possession drug crime, later expunged by the state court, did
not constitute a “conviction” for federal immigration
purposes. Nunez-Reyes, 646 F.3d at 688. We concluded that
Lujan-Armendariz was wrongly decided, but determined,
based on Chevron Oil, to apply our decision only
prospectively, based on three considerations: (1) the court
was announcing a new rule of law, overruling clear past
circuit precedent; (2) retroactive application of the rule posed
a risk of substantial injustice; and (3) retroactive application
would not further the rule’s underlying purpose. Id. at
692–94. In reaching this conclusion, we took into
consideration undisputed evidence that “because of the clarity
and consistent application” of the prior precedent, aliens for
more than a decade had pleaded guilty to minor drug crimes,
finished drug programs, and gotten their convictions
expunged “in reliance on Lujan-Armendariz’s promise that
doing so would spare them from adverse immigration
consequences.” Id. at 692.
The case before us now is different from Nunez-Reyes in
at least two important respects. First, in this case we are not
overruling our own firmly rooted precedent. Second, though
we recognize the consequences for Lemus may be serious, the
LEMUS V. LYNCH 13
record offers no evidence that applying Martinez Gutierrez
retroactively will risk the sort of broad injustice that
concerned us in Nunez-Reyes. In that case, the record offered
evidence that, based on advice of counsel, substantial
numbers of individuals had waived their constitutional rights
in reliance on the prior precedent and would be at risk of
deportation by a retroactive application of the new rule. Id.at 693–94. In addition, Nunez-Reyes made clear that the
Chevron Oil test may not be applied on a case-by-case
basis—courts “must decide between pure prospectivity and
full retroactivity.” 646 F.3d at 690. Chevron Oil thus is a
poor fit here and offers no help to Lemus because, as
discussed above, we have already applied the rule disallowing
imputation retroactively.
Garfias-Rodriguez offers a much closer analogy to this
case. The background of that case was our decision in Acosta
v. Gonzales, 439 F.3d 550, 551–52 (9th Cir. 2006), in which
we held that aliens inadmissible under § 212(a)(9)(C)(i)(I) of
the INA, 8 U.S.C. § 1182(A)(9)(c)(i)(I), might be eligible for
adjustment of status based on a marriage to an American
citizen. A year later, the BIA reached a contrary conclusion
in In re Briones, 24 I. & N. Dec. 355 (BIA 2007). In Garfias-
Rodriguez, we held that in light of the BIA’s reasoned
opinion, Briones was entitled to deference. 702 F.3d at 514.
Having resolved the substantive issue against the
petitioner, Garfias-Rodriguez confronted the question of
retroactivity. The pivotal question on this issue was whether,
in those circumstances, “we, as a judicial decisionmaker,
have changed the law, or whether it is the agency that has
changed the law.” Id. Garfias-Rodriguez concluded that
where we defer to an agency rule, we will treat the new rule
“as we would if the agency had changed its own rules.” Id.
14 LEMUS V. LYNCH
at 516. In reaching this conclusion, we drew a bright line
between the situation where we defer to an agency and the
situation where, as in Nunez-Reyes, the circuit itself adopts a
new and different rule. Id. at 517–18. In addressing the issue
of retroactivity in a deferral situation, Garfias-Rodriguez held
that Chevron Oil was “not the appropriate framework.” Id. at
518. In these circumstances, the test to be applied was to be
found in Montgomery Ward. Id. at 520.
When applied to determine whether agency rulings can be
applied retroactively, the Montgomery Ward test considers:
(1) whether the particular case is one of first
impression, (2) whether the new rule
represents an abrupt departure from well
established practice or merely attempts to fill
a void in an unsettled area of law, (3) the
extent to which the party against whom the
new rule is applied relied on the former rule,
(4) the degree of the burden which a
retroactive order imposes on a party, and
(5) the statutory interest in applying a new
rule despite the reliance of a party on the old
standard.
691 F.2d at 1333.
Applying these five factors, we find that the balance tips
against Lemus.
The first factor, whether this is a case of first impression,
is “not . . . well suited to the context of immigration law” and
favors neither party. Garfias-Rodriguez, 702 F.3d at 521.
LEMUS V. LYNCH 15
The second and third factors are intertwined. These “will
favor retroactivity if a party could reasonably have
anticipated the change in the law such that the new
‘requirement would not be a complete surprise.’” Id. at 521,
(quoting Montgomery Ward, 691 F.2d at 1333–34. Garfias-
Rodriguez emphasized that the “ambiguity in the law—which
resulted in a six-year dialogue between the BIA and
us—should have given Garfias no assurances of his eligibility
for adjustment of status.” Id. at 522. Given the virtually
identical facts here, Montgomery Ward’s second and third
factors must weigh heavily against Lemus. The fact that we
“doubled down” in Mercado-Zazueta after Garfias-Rodriguez
does not dictate a different result in this case. Simply put,
although Mercado-Zazueta attempted to clarify this court’s
stance on imputation, it cannot be said that it settled the
debate with such finality that the subsequent contrary
decision in Martinez Gutierrez was a “complete surprise.”
Lemus was on notice that our approach was vulnerable based
upon repeated contrary decisions, not only from the BIA but
from other circuits as well.
The fourth factor, as in Garfias-Rodriguez, favors Lemus,
given the increased risk of deportation he faces if Martinez
Gutierrez is applied retroactively. See 702 F.3d at 523.
Finally, the fifth factor favors the government, as it has a
strong interest in the uniform application of the statutory
immigration scheme. See id. Indeed, as noted, Martinez
Gutierrez applied retroactively to both aliens who were the
subject of that case. In fact, we have subsequently applied it
retroactively to nine other individuals as well. See Santos-
Martinez v. Lynch, 620 F. App’x 586 (9th Cir. 2015);
Sanchez-Cortes v. Holder, 579 App’x 550 (9th Cir. 2014);
Sanchez v. Holder, 567 F. App’x 553 (9th Cir. 2014);
16 LEMUS V. LYNCH
Martinez-Escalera v. Holder, 555 F. App’x 695 (9th Cir.
2014); Paez-Carrasco v. Holder, 544 F. App’x 789 (9th Cir.
2013); De Zavala v. Holder, 492 F. App’x 821 (9th Cir.
2012); Mojica v. Holder, 689 F.3d 1133 (9th Cir. 2012) (per
curiam); Pimentel-Ornelas v. Holder, 475 F. App’x 223 (9th
Cir. 2012); Parra Camacho v. Holder, 478 F. App’x 431 (9th
Cir. 2012).
Having applied the Montgomery Ward factors and
concluded that they favor retroactive application of Martinez
Gutierrez, we should note that, even under Chevron Oil, the
argument favoring a prospective-only application would be
a very hard sell. Significantly, Judge Graber, who wrote the
majority opinion in Nunez-Reyes favoring prospective
application in that case, submitted a short, separate opinion in
Garfias-Rodriguez, taking the position in that case that
retroactive application would be appropriate under either
Chevron Oil or Montgomery Ward. Garfias-Rodriguez,
702 F.3d at 534. Moreover, as the majority in Garfias-
Rodriguez recognized, “In practice, we see very little
substantive difference between [the Chevron Oil] factors and
those of Montgomery Ward.” Id. at 517 n.10.
Lastly, given that Martinez Gutierrez bars Lemus from
imputing his stepfather’s years of residence to obtain
eligibility for cancellation of removal, his due process
argument regarding access to his stepfather’s A-File must
also fail. Even if he obtained the file, and it confirmed his
stepfather’s years of residency, they would be of no help to
him.
LEMUS V. LYNCH 17
IV. CONCLUSION
The BIA correctly determined that Jose Daniel Lemus is
not eligible for cancellation of removal under 8 U.S.C.
§ 1229b(a). This Petition is therefore DENIED.