Becker v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HERBERT BECKER, 
Petitioner, No. 05-76977
v.
 Agency No.
A97-343-613
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 17, 2006—San Francisco, California
Filed January 10, 2007
Before: Proctor Hug, Jr., A. Wallace Tashima, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
249
BECKER v. GONZALES 251
COUNSEL
Thomas H. Tousley, Law Office of Thomas H. Tousley, Vir-
ginia, for petitioner Michael Herbert Becker.
Anthony P. Nicastro, Attorney, Office of Immigration Litiga-
tion, Civil Division, United States Justice Department, Wash-
ington, D.C., argued for respondent Alberto Gonzales, United
States Attorney General. Peter D. Keisler, Assistant Attorney
General, Civil Division, Richard M. Evans, Assistant Direc-
tor, and David E. Dauenheimer, Attorney, Office of Immigra-
tion Litigation, Civil Division, United States Justice
Department, Washington, D.C., were on the brief.
252 BECKER v. GONZALES
OPINION
GOULD, Circuit Judge:
Michael Herbert Becker, a native and citizen of Germany,
petitions for review of the Board of Immigration Appeals’
(“BIA’s”) final order of removal. Becker contends that the
BIA’s finding that he is not eligible to apply for cancellation
of removal has been superceded by our decision in Lopez-
Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006).1 We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C), and
deny his petition for review.2
I
Becker was admitted to the United States at the age of six,
on or about April 4, 1961, and is a lawful permanent resident.
On December 9, 2004, Becker pleaded guilty to the offense
of “Possession of Drug Paraphernalia,” a Class 6 felony, in
violation of Arizona Revised Statutes §§ 13-3401, 3408,
3415, 701, 702.01, 801 and 901.01(A).3 Removal proceedings
were initiated against Becker on February 14, 2005, when a
Notice to Appear (“NTA”) was filed with the Immigration
1
We address the other issues Becker raised in his petition for review in
a separately-filed memorandum disposition and address in this published
opinion only the issue of whether Becker is eligible to apply for cancella-
tion of removal.
2
We review de novo questions of law. See Lal v. INS, 255 F.3d 998,
1004 (9th Cir. 2001); see also Fernandez-Ruiz v. Gonzales, 410 F.3d 585,
587 (9th Cir. 2005). “To the extent that the BIA incorporates the [Immi-
gration Judge’s (“IJ”)] decision as its own, we treat the IJ’s statement of
reasons as the BIA’s and review the IJ’s decision. Except to that extent,
our review is confined to the decision of the BIA.” Gonzales v. INS, 82
F.3d 903, 907 (9th Cir. 1996) (internal citations omitted).
3
An FBI criminal background check reveals Becker’s significant crimi-
nal record beginning with his April 1, 1974, conviction for burglary and
possession of drugs and generating approximately twenty-five hits, culmi-
nating in his December 9, 2004 arrest.
BECKER v. GONZALES 253
Court charging that Becker was removable as an alien con-
victed of a controlled substance offense, in violation of INA
§ 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I). Becker con-
ceded that he was removable as charged, but requested can-
cellation of removal under INA § 240A(a), 8 U.S.C.
§ 1229b(a).
The Immigration Judge (“IJ”) found Becker removable as
an alien convicted of a controlled substance offense, denied
his application for relief, and ordered him removed to Ger-
many. The BIA issued an opinion affirming the IJ’s decision.
This petition for review followed.
II
[1] An alien convicted of any aggravated felony at any time
is not eligible for cancellation of removal. INA § 240A(a)(3);
United States v. Corona-Sanchez, 291 F.3d 1201, 1210 n.8
(9th Cir. 2002) (en banc). A conviction for an aggravated fel-
ony precludes eligibility even absent a charge and finding of
removability on that ground. Compare INA § 240A(a)(3) (an
alien “convicted of any felony” is not eligible) with Matter of
Fortiz-Zelaya, 21 I&N Dec. 1199 (BIA 1998) (holding that
“is deportable” for the purposes of § 212(c) eligibility
requires a charge and finding of deportability under the rele-
vant deportation ground) and Matter of Ching 12 I&N Dec.
710 (BIA 1968) (same for suspension of deportation). The
effective-date provision of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”) § 321,
which defines certain crimes as aggravated felonies, applies
“regardless of the date of the commission of the crime.”
Lopez-Castellanos, 437 F.3d at 852; see Aragon-Ayon v. INS,
206 F.3d 847, 853 (9th Cir. 2000); see also INS v. St. Cyr, 533
U.S. 289, 319, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001)
(“IIRIRA’s amendment of the definition of ‘aggravated fel-
ony’ . . . clearly states that it applies with respect to ‘convic-
tion[s] . . . entered before, on, or after’ the statute’s enactment
date.”).
254 BECKER v. GONZALES
In Lopez-Castellanos, we applied St. Cyr’s retroactivity
analysis to a petitioner who was charged as removable in
December of 1999 based on his October 21, 1988 guilty plea
to one count of lewd or lascivious acts with a child under the
age of fourteen. See Lopez-Castellanos, 437 F.3d at 850, 852-
54. At the time of Lopez-Castellanos’s conviction, the list of
aggravated felonies under the INA did not include lewd or
lascivious acts with a child. See id. at 852. Though our case
law makes clear that IIRIRA’s defining of aggravated felonies
applies regardless of the date of commission of the crime, in
Lopez-Castellanos we answered the question of “whether the
substantive immigration consequences of IIRIRA” applied to
petitioner4 under St. Cyr’s retroactivity analysis. See id. at
852-54. We concluded that Lopez-Castellanos was eligible for
cancellation of removal because “[t]o deprive Lopez-
Castellanos of eligibility for discretionary relief would pro-
duce an impermissibly retroactive effect for aliens who, like
Lopez-Castellanos, were eligible for a discretionary waiver at
the time of the plea.” Id. at 853.
[2] Our decision in Lopez-Castellanos does not, however,
supercede the BIA’s finding that Becker is ineligible to apply
for cancellation of removal. Becker concedes that he is
removable as charged based on his December 9, 2004 convic-
tion for possession of drug paraphernalia. See INA
§ 237(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(B)(I) (alien con-
victed of a controlled substance offense). Unlike Lopez-
Castellanos, who was charged as removable based solely on
his 1988 conviction, Becker has never been charged as
removable based on his 1978 aggravated felony conviction.
4
Lopez-Castellanos conceded removability but requested cancellation of
removal. Id. The IJ denied his motion, finding that he was ineligible for
cancellation of removal based on his 1988 aggravated felony conviction
and that, in addition, he could not meet his burden of proving good moral
character because of the prior aggravated felony conviction. Id. The BIA
affirmed. Id. at 851. On appeal, Lopez-Castellanos sought a waiver of his
1988 conviction under former Immigration and Nationality Act (“INA”)
§ 212(c) which was in force at the time of his 1988 conviction. Id. at 852.
 BECKER v. GONZALES 255
Thus, the issue is whether Becker’s 1978 conviction for pos-
session of marijuana for sale may be treated as a disqualifying
aggravated felony conviction for purposes of his current
request for cancellation of removal following his 2004 con-
trolled substance conviction.
[3] When Becker was convicted of possession of marijuana
for sale in 1978, § 212(c) allowed a lawful permanent resident
with seven years of consecutive residence in the United States
to apply for a discretionary waiver of deportation. See St. Cyr,
533 U.S. at 295. The IIRIRA, which became effective in April
1997, repealed § 212(c) and replaced it with § 240A. Under
§ 240A, the Attorney General may cancel removal of an alien
who has been a lawful permanent resident for not less than
five years, has resided continuously in the United States for
seven years after having been admitted, and “has not been
convicted of any aggravated felony.” INA § 240A(a); 8
U.S.C. § 1229b(a). An alien “who has been granted relief
under section 212(c)” is ineligible for cancellation of removal.
INA § 240A(c)(6); 8 U.S.C. § 1229b(c)(6). On appeal, Becker
argues that he should be allowed to apply for a § 212(c)
waiver of deportation concerning his 1978 conviction, as well
as, cancellation of removal concerning his 2004 conviction.
Under St. Cyr, Ҥ 212(c) relief remains available for aliens
whose convictions were obtained through plea agreements
and who, notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under the
law then in effect.” 533 U.S. at 326.
[4] Even if Becker qualifies for relief under former
§ 212(c), he still is not eligible for cancellation of removal
and his petition must be denied. This is because “the grant of
section 212(c) relief merely waives the finding of deporta-
bility rather than the basis of the deportability itself. There-
fore, the crimes alleged to be grounds for deportability do not
disappear from the alien’s record for immigration purposes.”
Matter of Balderas, 20 I&N Dec. 389, 391 (BIA 1991); see
Molina-Amezcua v. INS, 6 F.3d 646, 647 (9th Cir. 1993) (“A
waiver of deportation gives an alien a chance to stay in the
256 BECKER v. GONZALES
United States despite his misdeed, but it does not expunge the
conviction”); see also Rodriguez-Munoz v. Gonzales, 419
F.3d 245, 248 (3rd Cir. 2005) (holding that petitioner’s 1992
conviction for criminal sale of a controlled substance consti-
tuted an aggravated felony for purposes of precluding his
application for cancellation of removal, notwithstanding peti-
tioner’s eligibility to apply for a waiver of his 1992 conviction
under St. Cyr and former INA § 212(c)). Even if Becker were
able to waive his 1978 conviction under § 212(c), as we found
Lopez-Castellanos was eligible to do,5 it would nonetheless
remain an aggravated felony for purposes of precluding his
application for cancellation of removal because of his 2004
conviction. See 8 U.S.C. § 1229b(a) (The Attorney General
may cancel removal only if the lawful permanent resident
“has not been convicted of a felony”); see also Rodriguez-
Munoz, 419 F.3d at 248.6 Moreover, “[t]he loss of an opportu-
nity to become eligible for discretionary relief [like cancella-
tion of removal] does not rise to the level of impairing a right
possessed by a party.” Valencia-Alvarez v. Gonzales, 469
F.3d 1319, 1328-29 (9th Cir. 2006) (citing Landgraf v. USI
Film Prods., 511 U.S. 244, 280, 114 S. Ct. 1483, 128 L. Ed. 2d
229 (1994) (internal footnote omitted)).
[5] Accordingly, we hold that Becker is not eligible to
apply for cancellation of removal for a lawful permanent resi-
dent.
PETITION FOR REVIEW DENIED.
5
We did not remand Lopez-Castellanos’s case to the BIA because the
IJ determined as a second basis for rejecting the application that Lopez-
Castellanos’s aggravated felony conviction precluded him from demon-
strating good moral character, a necessary predicate to relief; and we were
bound by that discretionary determination. Lopez-Castellanos, 437 F.3d at
854.
6
Our separately-filed memorandum disposition considers and rejects
Becker’s argument that his 1978 conviction does not constitute an aggra-
vated felony.