Garcia-Jimenez v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GARCIA-JIMENEZ,  No. 03-74625
Petitioner, Agency No.
v. A93-143-043
ALBERTO R. GONZALES, Attorney
General,  ORDER
AMENDING
Respondent. OPINION AND
AMENDED
OPINION AND
 DISSENT
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2006*
Pasadena, California
Filed January 3, 2007
Amended May 30, 2007
Before: Harry Pregerson, Barry G. Silverman and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge Pregerson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
6387
GARCIA-JIMENEZ v. GONZALES 6389
COUNSEL
Noemi G. Ramirez, The Pacific Center, Los Angeles, Califor-
nia, for the petitioner.
Peter D. Keisler, Terri J. Scadron, and Leslie McKay, Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for the respondent.
6390 GARCIA-JIMENEZ v. GONZALES
ORDER
Judges Silverman and Tallman voted to deny the petition
for rehearing en banc and Judge Pregerson voted to grant it.
No judge has made an en banc call.
The opinion filed January 3, 2007, and appearing at 472
F.3d 679 (9th Cir. 2007), is hereby amended to include a dis-
sent by Judge Pregerson. Pursuant to General Order 5.3.a, an
amended opinion showing that Judge Pregerson no longer
joins the majority opinion and now dissents is filed contempo-
raneously with this order. No subsequent petition for rehear-
ing or petition for rehearing en banc may be filed as to the
amended opinion.
OPINION
SILVERMAN, Circuit Judge:
The government charged petitioner Jose Garcia-Jimenez
with being removable on account of, first, two prior criminal
convictions occurring in the mid-1990s, and, second, a recent
attempt to smuggle undocumented aliens into the country.
Garcia-Jimenez’s criminal convictions occurred before Con-
gress replaced the Immigration and Nationality Act’s waiver
of deportation provisions with the more stringent cancellation
of removal provisions. Accordingly, he was entitled to apply
for, and did receive, a waiver as to his convictions. The Immi-
gration Judge, however, denied relief as to the alien smug-
gling charge. She applied 8 U.S.C. § 1229b(c)(6), which
precludes cancellation of removal in cases where the alien has
been granted a waiver of deportation. We hold today that
§ 1229b(c)(6) bars an alien from obtaining cancellation of
removal if he has ever received a waiver of deportation, even
if the waiver of deportation was granted in the same proceed-
ing in which cancellation of removal is sought. The statute
GARCIA-JIMENEZ v. GONZALES 6391
prohibits an alien from receiving both waiver of deportation
and cancellation of removal. Therefore, we deny Garcia-
Jimenez’s petition for review.
I. BACKGROUND
Garcia-Jimenez is a native and citizen of Mexico. He
obtained temporary resident status in November 1988, and his
status was adjusted to that of legal permanent resident on
December 1, 1990.
On June 8, 1995, Garcia-Jimenez pled guilty to corporal
injury of a spouse in violation of California Penal Code
§ 273.5(a). On March 27, 1996, he pled guilty to possession
of cocaine in violation of California Health & Safety Code
§ 11350(a). On May 27, 2000, Garcia-Jimenez came to the
attention of the immigration authorities when he attempted to
smuggle his sister-in-law and niece into the United States at
the San Ysidro Port of Entry.
On June 15, 2000, the former Immigration and Naturaliza-
tion Service (“INS”) initiated removal proceedings against
Garcia-Jimenez under 8 U.S.C. § 1182(a)(2)(A)(i)(I) & (II),
charging him with removability on account of his committing
a crime of moral turpitude (i.e., the domestic violence convic-
tion) and a controlled substance violation. On February 19,
2002, the INS also charged Garcia-Jimenez with removability
under § 1182(a)(6)(E)(i) arising out of the smuggling incident
on May 27, 2000.
Garcia-Jimenez conceded removability. Because he pled
guilty to both state charges before Congress enacted the Ille-
gal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-597,
which abolished waiver of deportation under former § 212(c)
of the Immigration and Nationality Act (codified at 8 U.S.C.
§ 1182(c) (repealed 1996)) and instituted cancellation of
removal, he was entitled to seek § 212(c) relief as to those
6392 GARCIA-JIMENEZ v. GONZALES
charges. See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (holding
retroactive application of the Act’s bar to former § 212(c)
relief would have an impermissible retroactive effect on cer-
tain lawful permanent residents).1 The alien smuggling inci-
dent, however, occurred after IIRIRA’s enactment, so, to
avoid removal based on that charge, Garcia-Jimenez had to
seek cancellation of removal under 8 U.S.C. § 1229b(a).2 The
IJ denied cancellation of removal, and ordered Garcia-
Jimenez removed to Mexico.
The Board of Immigration Appeals (“BIA”) affirmed, rea-
soning that § 1229b(c)(6) “explicitly states that an alien is
ineligible for cancellation of removal if he has been granted
relief under section 212(c),” and thus “the Immigration Judge
correctly found [Garcia-Jimenez] to be ineligible for cancella-
tion of removal because he was granted relief under section
212(c) of the Act.” Garcia-Jimenez filed this timely petition
for review.
1
The Board of Immigration Appeals construed § 212(c) to afford perma-
nent resident aliens a discretionary waiver of deportation if they had lived
in the country for seven consecutive years and had not been convicted of
an aggravated felony.
2
Cancellation of removal is available to an alien who has been a lawful
permanent resident for at least five years, has resided continuously in the
country for seven years, and has no conviction for an expanded universe
of aggravated felonies. 8 U.S.C. § 1229b(a). The IJ determined that
Garcia-Jimenez was not eligible for cancellation of removal as to his sec-
ond conviction because his first conviction in 1995 for spousal abuse con-
stituted a crime of moral turpitude, triggering IIRIRA’s new “stop-time”
provision and ending his run of “continuous physical presence” in the
United States. See § 1229b(d)(1) (“any period of continuous physical pres-
ence . . . end[s] when the alien has committed an offense referred to in sec-
tion 1182(a)(2) of this title that renders the alien inadmissible”). Thus,
when he was convicted for a controlled substance violation in 1996,
Garcia-Jimenez could no longer meet the seven-year residency require-
ment.
GARCIA-JIMENEZ v. GONZALES 6393
II. JURISDICTION
[1] The Immigration and Nationality Act ordinarily divests
the court of appeals of jurisdiction to review any “final order
of removal” against an alien who, like Garcia-Jimenez, has
been found removable for committing a crime of moral turpi-
tude or a controlled substance violation. 8 U.S.C.
§ 1252(a)(2)(C). The Act, however, states that “[n]othing
[herein] . . . which limits or eliminates judicial review shall
be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review.” Id.
§ 1252(a)(2)(D). The issue that Garcia-Jimenez raises in his
petition is a question of law — whether § 1229b(c)(6) bars
him from simultaneously obtaining both a waiver of deporta-
tion under § 212(c) and cancellation of removal under
§ 1229b(a). Therefore, we have jurisdiction to review his peti-
tion.
III. THE MERITS
[2] Section 1229b(c)(6) provides that cancellation of
removal is not available to:
[a]n alien whose removal has previously been can-
celled under this section or whose deportation was
suspended under section 1254(a) of this title or who
has been granted relief under [§ 212(c)] of this title,
as such sections were in effect before September 30,
1996.
Latching onto the word “previously,” Garcia-Jimenez argues
that § 1229b(c)(6) does not apply to him because he was
granted § 212(c) relief in the same proceeding in which he
sought cancellation of removal, not in a previous proceeding.
Garcia-Jimenez misreads the statute.
[3] The plain language of the statute controls. See Flores-
Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993) (applying the
6394 GARCIA-JIMENEZ v. GONZALES
Act’s plain language; “[t]he provision is not ambiguous, nor
does its plain language lead to absurd results or internal statu-
tory inconsistencies.”). Section 1229b(c)(6) mentions three
forms of relief — cancellation of removal, suspension of
deportation under § 1254, and waiver of deportation under the
former § 212(c). Congress inserted the word “or” into
§ 1229b(c)(6) in such a way as to create three different
classes of aliens, each of which is the beneficiary of one of
those three forms of relief. And the word “previously”
appears in the part of the statute that identifies the first class
of aliens, but not the second or third. See § 1229b(c)(6) (dis-
qualifying “an alien whose removal has previously been can-
celled under this section or . . . who has been granted relief
under [§ 212(c)]” (emphasis added)). We will not ignore such
a clear distinction in the statute. That is, with respect to grants
of § 212(c) relief, § 1229b(c)(6)’s bar on further relief does
not depend on when the alien received his waiver; it is suffi-
cient if a waiver of deportation “has been granted.”3
§ 1229b(c)(6). Indeed, we said as much in Maldonado-
Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th Cir. 2006):
The statute is not ambiguous. Congress’s language
indicates as clearly as words can state that any
receipt of § 212(c) relief will foreclose
[§ 1229b(c)(6)] relief: cancellation of removal is
unavailable to ‘[a]n alien whose removal has previ-
ously been cancelled under this section . . . or who
has been granted relief under [§ 212(c)] . . . .’
Id.4 It is irrelevant that an alien may simultaneously apply for
adjustment of status and § 212(c) relief.
3
We offer no opinion as to what “previously” means with respect to
aliens who initially received cancellation of removal.
4
At issue in Maldonado-Galindo was whether § 1229b(c)(6) bars can-
cellation of removal for those aliens granted § 212(c) relief before
IIRIRA’s enactment. We held that, even if Congress did not “clearly indi-
cate” in the statute that cancellation of removal is unavailable to an alien
who received § 212(c) relief before IIRIRA’s enactment, § 1229b(c)(6)
does not have an impermissible retroactive effect. Id. at 1068.
 GARCIA-JIMENEZ v. GONZALES 6395
The Eighth Circuit has come to the same conclusion. In
Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006), the
petitioner argued that his procedural due process rights were
violated when the immigration judge ruled that § 1229b(c)(6)
barred him from simultaneously obtaining § 212(c) relief and
cancellation of removal. Id. at 350. The court held that “Con-
gress intended to deny [cancellation of removal] to aliens who
commit multiple deportable offenses. Therefore, it does not
matter when the discretionary § 212(c) relief is granted; it dis-
qualifies the alien from [§ 1229b] relief for a second, post-
IIRIRA offense.” Id.
[4] By enacting § 1229b(c)(6), Congress made its intention
clear: an alien who has received § 212(c) relief — at any time
— cannot also receive § 1229b relief. Garcia-Jimenez was eli-
gible for one form of relief or the other, but not both.
IV. CONCLUSION
[5] The BIA correctly held that 8 U.S.C. § 1229b(c)(6)
barred Garcia-Jimenez from seeking cancellation of removal.
The petition for review is DENIED.
PREGERSON, Circuit Judge, dissenting:
Garcia-Jimenez is not a man with a clean record. He has
two convictions, and there is evidence that he engaged in
alien smuggling. In June 1995, Garcia-Jimenez pled guilty to
corporal injury of a spouse. In March 1996, he pled guilty to
possession of cocaine. In May 2000, he allegedly attempted
to smuggle his sister-in-law and niece into the United States.
On June 15, 2000, the former INS initiated removal pro-
ceedings against Garcia-Jimenez based on his convictions for
domestic violence and drug possession. On February 19,
2002, the INS added a removability charge based on the
6396 GARCIA-JIMENEZ v. GONZALES
smuggling incident. All charges were before the IJ at one
hearing. Garcia-Jimenez conceded removability, but sought
both suspension of deportation and cancellation of removal.
These two forms of relief are largely equivalent. In 1996,
Congress passed the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-
208, 110 Stat. 3009-597. That statute replaced the suspension
of deportation process with the more stringent cancellation of
removal process.
Because Garcia-Jimenez pled guilty to the domestic vio-
lence and drug charges before Congress enacted IIRIRA, he
was eligible for a waiver of deportation under former
§ 212(c). The smuggling incident, however, occurred after
IIRIRA. Therefore, with regards to the smuggling incident,
Garcia-Jimenez was not eligible for § 212(c) relief and had to
apply for cancellation of removal under § 1229b(a). The BIA
held, however, that Garcia-Jimenez was not eligible for can-
cellation of removal because he had already received a waiver
for suspension of deportation under § 212(c).1
Section 1229b(c)(6) provides that cancellation of removal
is not available to:
[a]n alien whose removal has previously been can-
celled under this section or whose deportation was
suspended under section 1254(a) of this title or who
has been granted relief under [§ 212(c)] of this title,
1
It appears from the record that there are many reasons why Garcia-
Jimenez would not be eligible for cancellation of removal. However, as
the BIA denied relief based on § 1229b(c)(6), we limit our review to that
provision. Even if we overturn the BIA’s decision based on that issue, it
is unlikely that Garcia-Jimenez would ultimately obtain the relief he seeks.
We are not concerned here with his general eligibility under the cancella-
tion of removal statute. Instead, we are examining the effect of
§ 1229b(c)(6) where a petitioner simultaneously seeks relief under the pre-
IIRIRA suspension of deportation rules and the post-IIRIRA cancellation
of removal rules.
GARCIA-JIMENEZ v. GONZALES 6397
as such sections were in effect before September 30,
1996.
Garcia-Jimenez argues that § 1229b(c)(6) does not apply to
him because he was granted § 212(c) relief in the same pro-
ceeding in which he sought cancellation of removal, not in a
previous proceeding. I agree.
The majority opinion reads the word “previously” to refer
only to a situation where an alien was granted relief under 8
U.S.C. § 1254. Section 1229b(c)(6) mentions three forms of
relief: cancellation of removal under § 1229b(a), suspension
of deportation under § 1254, and waiver of deportation under
former § 212(c). As the majority explains, Congress used the
word “or” in § 1229b(c)(6) to create three different classes of
aliens. (Maj. Op. 6394.) The majority argues that the word
“previously” appears in the part of the statute that identifies
the first class of aliens, but not in the portion of the statute
referring to the second or third classes of aliens. (Maj. Op.
6394.)
There is little support for the argument that Congress
intended this section to apply to events occurring in a single
immigration proceeding. Such a reading of the statute is
untenable. It leads to an absurd result in situations like the
case before us where an IJ does not reach the merits of an
alien’s petition simply because of the dates on which certain
incidents occurred. Had all of Garcia-Jimenez’s infractions
occurred before September 30, 1996 (the effective date of
IIRIRA), he would have been eligible to apply for a waiver
of deportation. Had all of his infractions occurred after Sep-
tember 30, 1996, he would have been eligible to apply for
cancellation of removal. Instead his infractions straddle this
date, and the BIA denied review on the merits.
It is illogical to conclude that Garcia-Jimenez was “previ-
ously . . . granted relief under [§ 212(c)],” § 1229b(c)(6)
(emphasis added), when that grant was part of the same pro-
6398 GARCIA-JIMENEZ v. GONZALES
ceeding where he applied for cancellation of removal. Con-
struing “previously” narrowly to include decisions occurring
in the same proceeding, effectively prevents any alien with
multiple infractions on his record from even petitioning for
appropriate relief. Taking the example before us: The IJ could
have first granted a § 212(c) waiver of Garcia-Jimenez’s
domestic violence conviction. The IJ could have then
refrained from evaluating the cocaine conviction because the
IJ “previously” granted relief under § 212(c). This unreason-
able result would be the effect of allowing “previously” to
cover decisions made in the context of a single proceeding.
I agree with the petitioner’s argument that “previously” in
§ 1229b(c)(6) must refer to a previous proceeding, not some-
thing that happened only minutes earlier within the same pro-
ceeding. This conclusion is further supported by the fact that
all the forms of relief that Congress included in § 1229b(c)(6)
are listed in the past tense: “an alien whose removal has previ-
ously been cancelled under this section or whose deportation
was suspended under section 1254(a) of this title or who has
been granted relief under [§ 212(c)].” Congress’s use of the
past tense in the statute supports the argument that the term
“previously” refers to a proceeding that occurred in the past,
and not a proceeding currently before the agency.
Accordingly, I respectfully dissent. I would hold the BIA
incorrectly held that 8 U.S.C. § 1229b(c)(6) barred Garcia-
Jimenez from seeking cancellation of removal. I would grant
the petition for review and remand this case to the BIA for
consideration of Garcia-Jimenez’s petition for cancellation of
removal on the merits.