Bernard Quitoriano v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARD FERIDO QUITORIANO, No. 09-72112
Petitioner, Agency No. A047-870-614
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 7, 2013**
San Francisco, California
Before: REINHARDT and WATFORD, Circuit Judges, and LYNN, District
Judge.***
1. Petitioner Bernard Quitoriano is a native and citizen of the Philippines who
was found subject to removal under section 237(a)(2)(B)(I) of the Immigration and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(B)(i), as an individual who has
been convicted of three violations of a law relating to a controlled substance. The
Immigration Judge (“IJ”) also denied Quitoriano’s application for cancellation of
removal under 240A(a)(2) of the INA, 8 U.S.C. § 1229b(a)(2), because he did not
have the required period of continuous residence. The BIA affirmed.
2. Quitoriano does not challenge the finding that he is subject to removal, only
the finding of ineligibility for cancellation of removal. To be eligible for
cancellation of removal, an individual must have “resided in the United States
continuously for 7 years.” 8 U.S.C. § 1229b(a)(2). By statute, “an alien ceases to
accrue time toward the residency requirement when . . . the alien commits one of a
number of criminal offenses.” Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1324
(9th Cir. 2006); 8 U.S.C. § 1229b(d)(1). Offenses that terminate continuous
residence include controlled substances offenses. 8 U.S.C. § 1182(a)(2)(A)(i)(II);
Valencia-Alvarez, 469 F.3d at 1324-25 n.8.
3. The BIA found that Quitoriano’s controlled substances offenses interrupted
his period of continuous residence, thus rendering him ineligible for cancellation of
removal. Quitoriano argues that his accrual of continuous residence should be
deemed as having terminated on the date that he failed to comply with the
conditions of probation that would have led to an expungement of his convictions
2
had he satisfied those conditions, not on the date that he committed the offenses
leading to his convictions. We reject this argument because it contradicts the plain
language of the statute, which bases termination of continuous residence on the
date when the act triggering removability was committed. “[T]he ‘stop-time’ rule .
. . is triggered by the commission of a crime, rather than by a conviction resulting
from a guilty plea.” In re Jurado-Delgado, 24 I. & N. Dec. 29, 32 (BIA 2006).
Because Quitoriano’s criminal offenses were committed less than seven years after
November 23, 2000—his date of admission to the United States—he did not have
the period of continuous residence required to be eligible for cancellation of
removal.1
PETITION DENIED.
1
We need not consider whether, had Quitoriano completed his probation and
successfully expunged his convictions, the offenses would still “render[] [him]
inadmissible” under 8 U.S.C. § 1229b(d)(1); here, Quitoriano’s convictions were
not expunged and the offenses leading to those convictions did render him
inadmissible.
3