Marina Hernandez v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1148
MARINA HERNANDEZ, a/k/a Marina Hernandez Hernandez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 29, 2015 Decided: April 14, 2015
Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Petition denied by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Motz joined.
ARGUED: Ofelia Lee Calderon, Anam Rahman, CALDERÓN SEGUIN PLC,
Fairfax, Virginia, for Petitioner. Monica G. Antoun, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Stuart F. Delery, Assistant Attorney General,
Shelley R. Goad, Assistant Director, Nancy K. Canter, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
NIEMEYER, Circuit Judge:
The Board of Immigration Appeals (“BIA”) denied the
application of Marina del Carmen Hernandez, a native and citizen
of El Salvador, for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1) because Hernandez had committed a “crime involving
moral turpitude” -- a petit-larceny offense -- that rendered her
ineligible for such relief. See 8 U.S.C. § 1229b(b)(1)(C)
(prohibiting the Attorney General from canceling the removal of
an alien who has “been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3)”); id. § 1227(a)(2)(A)(i)
(listing as an offense “a crime involving moral turpitude . . .
for which a sentence of one year or longer may be imposed”).
Hernandez argued that the cross-reference in § 1229b(b)(1)(C) to
§ 1227(a)(2) did not apply to her because § 1227(a)(2) makes
deportable only persons “in and admitted to the United States,”
and Hernandez had never been lawfully admitted. Rather, she
maintained that only the cross-reference to § 1182(a)(2) applied
and that that section rendered her prior crime irrelevant
because it contained a “petit-offense exception.” The BIA
rejected this argument, relying on its precedential decision in
Matter of Cortez Canales, 25 I. & N. Dec. 301, 306–08 (2010),
which read § 1229b(b)(1)(C) to cross-reference only the offenses
listed in the three cross-referenced sections, not the
substantive operation of those offenses. Thus, even though the
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substantive operation of § 1227(a)(2) did not apply to
Hernandez, the offense listed in § 1227(a)(2) did apply, and
that provision contains no petit-offense exception.
We conclude that the BIA’s reading of § 1229b(b)(1)(C) is
the most logical reading and therefore is, at least, a
permissible interpretation of the statute, entitling the BIA’s
decision to Chevron deference. Thus, we affirm the BIA and deny
Hernandez’s petition for review.
I
Hernandez entered the United States sometime in 1997
without lawful admission or parole after inspection and has,
since then, lived continuously in Virginia with her four
children, who are U.S. citizens. In 2001, Hernandez was granted
“temporary protected status,” which affords eligible aliens
protection from removal to certain countries upon the Attorney
General’s determination that conditions in those countries would
prevent their safe return. See 8 U.S.C. § 1254a.
In January 2007, Hernandez was convicted of petit larceny
under Va. Code Ann. § 18.2-96 and was sentenced to 30 days’
confinement in jail. After she failed to respond to a request
for documentation regarding her criminal record, U.S.
Citizenship and Immigration Services terminated her application
to renew her temporary protected status.
3
In March 2009, the U.S. Department of Homeland Security
commenced removal proceedings against Hernandez, charging her
with being “present in the United States without being admitted
or paroled,” in violation of 8 U.S.C. § 1182(a)(6)(A)(i). When
she appeared before an immigration judge in March 2013, she
conceded removability but filed an application for cancellation
of removal under § 1229b(b)(1), alleging that her children would
suffer hardship if she were not permitted to remain in the
United States. The immigration judge pretermitted her
application, holding that her petit-larceny conviction rendered
her ineligible for the relief she requested, and ordered that
she be removed to El Salvador.
The BIA dismissed Hernandez’s appeal. Noting that
Hernandez had conceded that petit larceny -- a Class 1
misdemeanor under Va. Code Ann. § 18.2-96, punishable by
confinement in jail for not more than 12 months, id. § 18.2-11
-- is a crime involving moral turpitude, the BIA held that
Hernandez was ineligible for cancellation of removal under
§ 1229b(b)(1)(C) because she had been convicted of “an offense
under section . . . 1227(a)(2)” -- specifically, “a crime
involving moral turpitude . . . for which a sentence of one year
or longer may be imposed,” § 1227(a)(2)(A)(i). The BIA rejected
her argument that the petit-offense exception to § 1182(a)(2), a
section that is also cross-referenced in § 1229b(b)(1)(C),
4
preserved her eligibility for cancellation of removal, holding
that the exception had no applicability to offenses described in
§ 1227(a)(2). The BIA also rejected Hernandez’s argument that
the offenses in § 1227(a)(2) and § 1227(a)(3) applied only to
aliens who, unlike Hernandez, had been admitted to the United
States, while the offenses in § 1182(a)(2) applied only to
aliens who had not been admitted. To do so, it relied on its
prior decision in Cortez Canales, which rejected the distinction
that Hernandez was trying to make.
From the BIA’s decision, Hernandez filed this petition for
review.
II
In her petition, Hernandez contends that even though she
committed a crime involving moral turpitude for which a sentence
of one year could have been imposed, she nonetheless remains
eligible for cancellation of removal under § 1229b(b)(1) because
her offense was excepted by the petit-offense exception
contained in § 1182(a)(2). In response to the government’s
position that § 1227(a)(2), which contains no petit-offense
exception, also applies, Hernandez contends that
§ 1229b(b)(1)(C)’s cross-reference to § 1227(a)(2) pertains only
to aliens who, unlike her, were admitted and are now deportable.
She argues further that even if § 1229b(b)(1)(C) generally
5
cross-references the offenses in § 1227(a)(2) regardless of an
alien’s admission status, § 1227(a)(2)(A)(i) does not apply to
unadmitted aliens because that section only makes an alien
deportable upon conviction of a crime involving moral turpitude
that was committed “within five years . . . after the date of
admission.” (Emphasis added). Thus, Hernandez argues that only
offenses under § 1182(a)(2) apply to her and that § 1182(a)(2)’s
petit-offense exception preserves her eligibility for
cancellation of removal.
The government contends that because § 1229b(b)(1)(C), by
its plain terms, applies both to aliens previously admitted and
now deportable and to aliens never admitted and now subject to
removal, the provision disqualifies from eligibility for
cancellation of removal the entire class of aliens who have
committed any offense listed in any of the three sections cross-
referenced in § 1229b(b)(1)(C). It argues that § 1229b(b)(1)(C)
does not cross-reference the substantive operation of those
sections, but only the offenses described within them, pointing
to the specific language of § 1229b(b)(1)(C) that allows the
cancellation of removal for admitted and unadmitted aliens only
if the alien “has not been convicted of an offense under” the
three sections. To support its conclusion, the government
relies on the BIA’s precedential decision in Cortez Canales,
which so held.
6
Because the BIA’s decision and the decision in Cortez
Canales involve statutory interpretation, we review the issue de
novo. But in doing so, we give the BIA Chevron deference so
long as its decision is a precedential decision issued by a
three-judge panel. See Martinez v. Holder, 740 F.3d 902, 909
(4th Cir. 2014). While the BIA’s decision in this case was
issued by a single BIA member, the BIA relied on Cortez Canales,
which was decided by a three-judge panel, thus entitling it to
Chevron deference. See, e.g., Escobar v. Holder, 657 F.3d 537,
542 (7th Cir. 2011); Efagene v. Holder, 642 F.3d 918, 920 (10th
Cir. 2011); Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th
Cir. 2009). Thus, Cortez Canales controls to the extent that
“Congress has not directly addressed the precise question at
issue” and “the [BIA]’s answer is based on a permissible
construction of the statute.” Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
To begin with, we recognize that the Immigration and
Nationality Act, 8 U.S.C. §§ 1101-1537, often makes the
distinction between an alien who has never been admitted to the
United States and an alien who has been admitted but who has
subsequently become deportable. Both inadmissible and
deportable aliens, however, are removable, albeit sometimes for
different grounds. See Judulang v. Holder, 132 S. Ct. 476, 479
(2011). Compare § 1182(a) (cataloging the grounds that render
7
an alien “ineligible to be admitted to the United States”
(emphasis added)), with § 1227(a) (listing the grounds for
deportation of an alien “in and admitted to the United States”).
Moreover, both inadmissible and deportable aliens can apply for
discretionary cancellation of removal under § 1229b(b)(1). And
when they do, the specific criteria that they must satisfy are
the same regardless of whether they are inadmissible or
deportable. See id. § 1229b(b)(1) (providing that the Attorney
General may cancel removal of “an alien who is inadmissible or
deportable,” so long as the alien satisfies the specified
criteria). Thus, regardless of whether Hernandez is
inadmissible or deportable, she is eligible for cancellation of
removal if she “has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3).” Id.
§ 1229b(b)(1)(C).
Section 1182(a)(2) provides that an alien is “ineligible to
be admitted to the United States” if he has been convicted of
certain listed crimes, including a crime involving moral
turpitude. But the crime involving moral turpitude listed under
this section is subject to a petit-offense exception, which
provides that a conviction for a crime involving moral turpitude
does not render an alien inadmissible if (1) the alien has been
convicted of a single crime; (2) the maximum penalty for the
crime committed “[does] not exceed imprisonment for one year”;
8
and (3) the alien “[is] not sentenced to a term of imprisonment
in excess of 6 months.” § 1182(a)(2)(A)(ii)(II). Section
1227(a)(2) provides that an alien “in and admitted to the United
States” is deportable if he has been convicted of certain listed
crimes, including a crime involving moral turpitude for which a
sentence of one year or longer may be imposed, but only if the
crime is committed within five years after the date of
admission. Id. § 1227(a)(2)(A)(i). And § 1227(a)(3) provides
that an alien is deportable if he has been convicted of a
failure to register or a falsification of certain entry
documents.
It is important to note that the cross-referenced sections
-- § 1182(a)(2), § 1227(a)(2), and § 1227(a)(3) -- do not
themselves criminalize any behavior. Rather, each lists
offenses that produce various immigration consequences. For
example, § 1227(a)(2)(A)(i) provides that any alien who has been
convicted of a qualifying crime involving moral turpitude during
the specified five-year period faces the immigration consequence
of deportation. Section 1229b(b)(1)(C), however, does not
appear to import the time constraint or the immigration
consequence of § 1227(a)(2)(A)(i) because § 1229b(b)(1)(C)
itself deals with its own consequence -- the ineligibility for
cancellation of removal. Thus, the provision appears to direct
consideration of only the offense in the cross-referenced
9
section. Moreover, because § 1229b(b)(1)(C) addresses both
admitted and unadmitted aliens alike, the fact that
§ 1227(a)(2)(A)(i) renders deportable only an alien who has been
admitted and only then if the alien committed the offense within
a specified time period is irrelevant for purposes of describing
crimes relevant to the availability of cancellation of removal
under § 1229b(b)(1)(C). In short, § 1229b(b)(1)(C) cross-
references only the offenses that preclude cancellation of
removal, not the immigration consequences that stem from those
offenses.
This construction is further indicated by the language
of § 1229b(b)(1)(C)’s surrounding provisions. Section
1229b(b)(2)(A)(iv) permits the Attorney General to cancel the
removal of an inadmissible or deportable alien who has been
battered by a spouse or parent of a U.S. citizen if, inter alia,
“the alien is not inadmissible under paragraph (2) or (3) of
section 1182(a) . . . [and] is not deportable under
paragraphs (1)(G) or (2) through (4) of section 1227(a).”
(Emphasis added). Similarly, under the “stop-time rule” of
§ 1229b(d)(1)(B), any period of continuous residence or
continuous physical presence in the United States is deemed to
end for purposes of § 1229b “when the alien has committed an
offense referred to in section 1182(a)(2) . . . that renders the
alien inadmissible to the United States under section 1182(a)(2)
10
. . . or removable from the United States under section
1227(a)(2) or 1227(a)(4).” (Emphasis added). Thus, whereas
§ 1229b(b)(2)(A)(iv) and § 1229b(d)(1)(B) explicitly specify
that the crimes listed in the cross-referenced statutes must
render the specific alien in question inadmissible or
deportable, § 1229b(b)(1)(C) lacks such explicitness, cross-
referencing only the crimes. Had Congress wanted
§ 1229b(b)(1)(C) to be interpreted in the same manner as
§ 1229b(b)(2)(A)(iv) and § 1229b(d)(1)(B), it would likely have
used similar language. See Cortez Canales, 25 I. & N. Dec.
at 308 (concluding that the stop-time rule “clearly evidences
Congress’ understanding of how to draft statutory language
requiring an alien to be inadmissible or removable under a
specific charge in section [1182] or [1227]”).
Hernandez maintains that if Congress had intended to cross-
reference only the offenses listed in the cross-referenced
sections and not their immigration consequences, it would have
used the phrase “an offense referred to in,” as it did in the
stop-time rule, rather than the phrase “an offense under.”
Congress, however, “is permitted to use synonyms in a statute.”
Tyler v. Cain, 533 U.S. 656, 664 (2001); see also, e.g., Moore
v. Harris, 623 F.2d 908, 914 (4th Cir. 1980) (“Inadvertent
statutory usage of synonyms in parallel sections does not
11
require us to conjure up a distinction which would violate the
statute’s raison d’etre”).
Accordingly, the most natural reading of § 1229b(b)(1)(C)
is that a conviction for any offense listed in § 1182(a)(2),
§ 1227(a)(2), or § 1227(a)(3) renders an alien ineligible for
cancellation of removal, regardless of the alien’s status as an
admitted or unadmitted alien. Accord Gonzalez-Gonzalez v.
Ashcroft, 390 F.3d 649, 650 (9th Cir. 2004) (holding that an
unadmitted alien who was convicted of a crime of domestic
violence -- a conviction that renders an admitted alien
deportable under § 1227(a)(2) but that does not render an
unadmitted alien inadmissible under § 1182(a)(2) -- was
ineligible for cancellation of removal because “[t]he plain
language of § 1229b indicates that it should be read to cross-
reference a list of offenses in three statutes, rather than the
statutes as a whole”); see also Nino v. Holder, 690 F.3d 691,
697–98 (5th Cir. 2012) (rejecting an admitted alien’s argument
that a crime-involving-moral-turpitude offense is only “under”
§ 1227(a)(2)(A)(i) for purposes of § 1229b(b)(1)(C) if the
conviction takes place within five years after the date of
admission, and holding that “Section 1229b(b)(1)(C), without
ambiguity, references Section 1227(a)(2) in order to identify
the kinds of offenses that will make an alien ineligible for
cancellation of removal”). But see Coyomani-Cielo v. Holder,
12
758 F.3d 908, 910–11 (7th Cir. 2014) (holding that
§ 1229b(b)(1)(C) is ambiguous because it “effectively says that
the Attorney General may cancel removal for an inadmissible or
deportable alien who has not been convicted of an offense under
another provision of the statute that speaks explicitly, and
only, in terms of deportable aliens”).
While our conclusion might not necessarily exclude some
other possible interpretation, we need not resolve whether our
reading of § 1229b(b)(1)(C) is the only possible reading of the
statute because our reading is consistent with the construction
adopted by the BIA in Cortez Canales. See 25 I. & N. Dec.
at 307 (“[I]n determining which offenses are ‘described under’
sections [1182(a)(2), 1227(a)(2), and 1227(a)(3)] for purposes
of section [1229b(b)(1)(C)], only language specifically
pertaining to the criminal offense, such as the offense itself
and the sentence imposed or potentially imposed, should be
considered. That is, . . . the statutory language of
sections [1182(a)(2), 1227(a)(2), and 1227(a)(3)] pertaining
only to aspects of immigration law, such as the requirement that
the alien’s crime be committed ‘within five years . . . after
the date of admission,’ is not considered.” (second alteration
in original)). Thus, for the same reasons we have given for our
reading of § 1229b(b)(1), we conclude that the BIA’s reading is
patently reasonable and therefore entitled to deference. Accord
13
Coyomani-Cielo, 758 F.3d at 915 (holding that Cortez Canales is
a reasonable construction of § 1229b(b)(1)(C) because “[i]t is a
sensible way (and perhaps the only way) to give effect to each
word of [§ 1229b(b)(1)(C)]”).
III
We find Hernandez’s various arguments against affording
Chevron deference to the BIA’s construction unpersuasive.
First, she notes that “[c]anons of construction ordinarily
suggest that terms connected by a disjunctive be given separate
meanings unless the context dictates otherwise,” United States
v. Urban, 140 F.3d 229, 232 (3d Cir. 1998) (quoting United
States v. 6109 Grubb Road, 886 F.2d 618, 626 (3d Cir. 1989))
(internal quotation marks omitted), and therefore she maintains
that § 1229b(b)(1)’s statutory language permitting cancellation
of removal of “an alien who is inadmissible or deportable from
the United States” must be read disjunctively, such that
“inadmissible” and “deportable” are given separate meanings.
She argues that this is especially so because “[t]he distinction
between exclusion and deportation has long been recognized in
immigration law.” But the BIA’s construction of
§ 1229b(b)(1)(C) does not obliterate the distinction between
inadmissible and deportable aliens. Rather, it provides that
any alien who meets the criteria for either inadmissibility or
14
deportability, as those terms are used throughout the
Immigration and Nationality Act, is ineligible for cancellation
of removal if he has “been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3).” Thus, the use
of the disjunctive defines the class of aliens to which
§ 1229b(b)(1)(C) is applicable, referring to both inadmissible
and deportable aliens and treating them alike.
Second, relying on Reyes v. Holder, 714 F.3d 731 (2d Cir.
2013), Hernandez contends that by using the terms “inadmissible”
and “deportable” in § 1229b(b)(1)(C), Congress “demonstrate[d]
that an applicant’s admission status is critical when
determining an alien’s eligibility for cancellation of removal.”
In Reyes, an unadmitted alien sought “special rule cancellation
of removal,” 714 F.3d at 732, which permits the Attorney General
to cancel the removal of qualified aliens from specific
countries as long as they are not “inadmissible under section
[1182(a)(2)–(3)] or deportable under section [1227(a)(2)–(4)],”
8 C.F.R. § 1240.66(b)(1). The Second Circuit held that the
alien’s conviction of “menacing in the second degree” did not
render him ineligible for discretionary relief, even though it
was listed among the offenses that would render an admitted
alien deportable under § 1227(a)(2), because the offense was not
listed in § 1182(a). Reyes, 714 F.3d at 737. Hernandez’s
reliance on Reyes, however, is misplaced because the language of
15
§ 1229b(b)(1)(C) differs substantially from the language of
8 C.F.R. § 1240.66(b)(1), which mirrors the structure of
§ 1229b(b)(2)(A)(iv) and § 1292b(d)(1)(B). Accord Coyomani-
Cielo, 758 F.3d at 913-14. And the Reyes court recognized as
much, specifically distinguishing Cortez Canales on that ground.
Reyes, 714 F.3d at 737.
Third, Hernandez argues that the BIA’s construction
requires rewriting the statute to read that an alien is
ineligible for cancellation of removal if he has “been convicted
of an offense [described] under §§ 1182(a)(2), 1227(a)(2), or
1227(a)(3)].” But an offense can only be “under” one of the
cross-referenced statutes if it is described or listed therein,
as those statutes are not themselves criminal statutes. Indeed,
it is Hernandez who would rewrite the statute so as to read,
“The Attorney General may cancel removal of . . . an alien who
is inadmissible or deportable from the United States if the
alien . . . has not been convicted of an offense [rendering the
alien inadmissible] under section 1182(a)(2) [or deportable
under sections] 1227(a)(2) or 1227(a)(3).”
Fourth, Hernandez argues that the BIA’s construction “leads
to the bizarre result that those who may have a conviction of a
crime involving moral turpitude in another country prior to
being admitted to the United States may be barred from ever
applying for cancellation of removal before they have even
16
stepped foot in the United States.” But this result is not
bizarre, especially because § 1182(a)(2) itself provides that
any alien who has been convicted of a crime involving moral
turpitude, as qualified therein, is ineligible to be admitted to
the United States. And even if this result were bizarre, it is
not for this court to criticize Congress’ policy choices.
Fifth, Hernandez argues that Cortez Canales is inconsistent
with the BIA’s earlier rulings in Matter of Garcia-Hernandez,
23 I & N. Dec. 590, 592-93 (2003), and Matter of Gonzalez-Silva,
24 I. & N. Dec. 218, 220 (2007), in which the BIA held,
respectively, that an offense is not under § 1182(a)(2) if it is
covered by the petit-offense exception and that an offense is
not under § 1227(a)(2)(E)(i) if it preceded that section’s
effective date. But this argument is no more than a
disagreement with the way that the BIA distinguished those cases
in Cortez Canales itself. As to Garcia-Hernandez, the BIA
explained that the petit-offense exception contains language
pertaining to “the sentence imposed or potentially imposed” and
that such language must be considered because it “specifically
pertain[s] to the criminal offense.” Cortez Canales, 25 I. & N.
Dec. at 307. And with respect to Gonzalez-Silva, the BIA
explained that “Congress expressly stated that
section [1227(a)(2)(E)(i)] applies only to those convictions
occurring after . . . September 30, 1996,” and that the BIA was
17
bound to defer to “this express statement of congressional
intent.” Id. at 310. We conclude that the BIA’s reasons are
not unprincipled.
Sixth and finally, Hernandez argues that the court must not
give § 1229b(b)(1)(C) “a more expansive interpretation that
restricts eligibility for relief to aliens facing deportation”
because “the rule of lenity stands for the proposition that
ambiguities in deportation statutes should be construed in favor
of the noncitizen,” Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir.
2012). But because “[t]he rule of lenity is a last resort, not
a primary tool of construction,” id. (alteration in original)
(quoting United States v. Ehsan, 163 F.3d 855, 858 (4th Cir.
1998)) (internal quotation marks omitted), it applies only where
“there is a grievous ambiguity or uncertainty in the statute,”
id. (quoting Muscarello v. United States, 524 U.S. 125, 138–39
(1998)) (internal quotation marks omitted). Where, as here, the
ambiguity is not grievous, courts must defer to the BIA’s
construction. Id.* * *
In sum, we hold that Hernandez is ineligible for
cancellation of removal by virtue of having “been convicted of
an offense under . . . § 1227(a)(2),” a crime involving moral
turpitude, punishable by a sentence of imprisonment for one year
18
or longer. We thus affirm the decision of the BIA and deny
Hernandez’s petition for review.
PETITION DENIED
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