Francisco Guerrero-Roque v. Loretta E. Lynch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO GUERRERO-ROQUE, No. 14-72082
Petitioner,
Agency No.
v. A090-638-308
LORETTA E. LYNCH,
U.S. Attorney General, OPINION
Respondent.
Petition for Review of a Decision of the
Board of Immigration Appeals
Submitted November 18, 2016 *
San Francisco, California
Filed January 9, 2017
Before: Alex Kozinski, Ronald Lee Gilman, **
and Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 GUERRERO-ROQUE V. LYNCH
SUMMARY ***
Immigration
The panel denied Francisco Guerrero-Roque’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for cancellation of removal because
he was convicted of several crimes involving either moral
turpitude or a controlled substance.
The panel held that the waiver of inadmissibility
authority provided in INA § 212(h) cannot excuse
convictions that bar an alien from cancellation relief under
INA § 240A(b). The panel also noted that Guerrero was
found inadmissible not on the grounds of his convictions but
because he entered without inspection, and that the § 212(h)
waiver provision consequently could not apply to his
inadmissibility finding. The panel also held that Guerrero’s
shoplifting convictions preclude him from seeking
cancellation, and declined to reach his argument that treating
his possession of marijuana conviction as a bar to
cancellation is arbitrary and capricious.
COUNSEL
Seth L. Reszko, Rez Athari & Associates, Las Vegas,
Nevada, for Petitioner.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GUERRERO-ROQUE V. LYNCH 3
Tiffany L. Walters, Trial Attorney; Jesse M. Bless, Senior
Litigation Counsel; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
PER CURIAM:
Francisco Guerrero-Roque is a native and citizen of
Mexico. After he illegally entered the United States in 1980
and was deported in 1985, he returned to the United States
without permission in 2003. An Immigration Judge (IJ) later
determined that Guerrero was inadmissible because he had
been neither admitted nor paroled into the United States, and
that he was consequently subject to removal. During the
pendency of his removal proceedings, Guerrero filed an
application for cancellation of removal. He was deemed
ineligible for such relief because he had been convicted of
several crimes in the state of Washington involving either
moral turpitude or a controlled substance.
Guerrero argues that he was improperly denied the
opportunity to seek cancellation of removal. For the reasons
set forth below, we deny Guerrero’s petition for review.
I.
Two weeks after Guerrero reentered the United States
without permission in 2003, the Immigration and
Naturalization Service (INS) charged Guerrero with being
removable as an alien present in the country without having
been either admitted or paroled. See Immigration and
Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C.
4 GUERRERO-ROQUE V. LYNCH
§ 1182(a)(6)(A)(i). An IJ found that Guerrero was subject
to removal based on Guerrero’s admission to the factual
basis of the INS’s charge.
Guerrero then applied for cancellation of removal
pursuant to INA § 240A(b). Under INA § 240A(b)(1)(C),
8 U.S.C. § 1229b(b), an alien subject to an order of removal
may obtain cancellation of that order only if, among other
things, he “has not been convicted of an offense under
section [212](a)(2).” Among the offenses listed in INA
§ 212(a)(2) are “a crime involving moral turpitude,” and “a
violation of . . . any law . . . relating to a controlled
substance.” Guerrero admitted in his application that he had
been previously convicted of four shoplifting offenses and a
marijuana possession offense in the state of Washington.
After a series of protracted hearings and appeals that are
irrelevant to the disposition of this case, the IJ denied
Guerrero’s application for cancellation of removal in
February 2013. The IJ concluded that Guerrero’s four
shoplifting convictions constituted crimes involving moral
turpitude (a conclusion not contested by Guerrero on appeal)
and that those convictions, as well as his controlled
substance conviction, disqualified Guerrero from seeking
cancellation of removal under INA § 240A(b). Guerrero
was consequently ordered removed.
The Board of Immigration Appeals (BIA) affirmed the
IJ’s decision in June 2014. Grounding its decision in Matter
of Bustamante, 25 I. & N. Dec. 564 (BIA 2011), the BIA
concluded that Guerrero could not rely upon INA § 212(h)
(which gives the Attorney General limited discretion to
waive certain grounds of inadmissibility) to seek a waiver of
his convictions for cancellation of removal purposes. This
timely petition for review followed.
GUERRERO-ROQUE V. LYNCH 5
II.
A. Standard of review
We typically review questions of law de novo. Cabrera-
Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005).
B. Section 212(h) waivers and cancellation of removal
Guerrero asks us to hold that the waiver of
inadmissibility provision in INA § 212(h) can be used to
excuse the convictions that disqualify him from cancellation
of removal relief under INA § 240A(b). He concedes,
however, that there is no legal authority to support his
position. We agree that no legal authority supports this
position, and we hold that the waiver authority provided in
INA § 212(h) does not nullify a conviction that disqualifies
an alien from cancellation of removal under INA § 240A(b).
INA § 212(a)(2)(A)(i) provides in relevant part that “any
alien convicted of . . . a crime involving moral turpitude . . .
or . . . a violation of . . . any law . . . relating to a controlled
substance . . . is inadmissible.” INA § 212(a)(2)(A)(i)(I),
(II), 8 U.S.C. § 1182(a)(2)(A)(i)(I), (II). The Attorney
General, however, “may, in his discretion, waive the
application of subparagraph[] (A)(i)(I) . . . of subsection
(a)(2) of this section and subparagraph (A)(i)(II) of such
subsection” if the alien or offense meets certain criteria.
INA § 212(h), 8 U.S.C. § 1182(h). By referring specifically
to the subsections of INA § 212 designating disqualifying
offenses for admission, INA § 212(h) has the effect of
excusing a prior crime involving moral turpitude or certain
controlled substance convictions for purposes of being
admitted. Id. Section 212(h) thus allows an alien whose
inadmissibility determination is based on the criminal
conduct specified in INA § 212(a)(2) to receive a waiver of
6 GUERRERO-ROQUE V. LYNCH
that ground of inadmissibility, in the Attorney General’s
discretion. See, e.g., Hing Sum v. Holder, 602 F.3d 1092,
1094 (9th Cir. 2010).
Guerrero was found to be inadmissible, however, not on
the grounds of his shoplifting or marijuana possession
convictions (although those offenses could have served as an
independent basis for such a finding), but because he entered
without inspection. See INA § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i). The § 212(h) waiver provision
consequently does not apply to his inadmissibility finding.
Guerrero argues, however, that his right to seek a waiver
under § 212(h) should apply to both INA § 212(a)(2) (as a
waiver of a ground of inadmissibility) and § 240A(b) (as a
waiver of a bar to cancellation of removal). He believes that
he should be able to pursue a waiver under § 212(h) of his
prior convictions, such that they would no longer disqualify
him from cancellation of removal under INA § 240A(b).
Guerrero’s belief is derived from the fact that both INA
§ 240A(b) (the cancellation of removal statute) and § 212(h)
(the waiver statute) refer to INA § 212(a)(2) (the
disqualifying offenses for admissibility statute).
But the plain language of the cancellation of removal
statute precludes this argument. Among other prerequisites,
INA § 240A(b)(1)(C) provides that the Attorney General
may cancel removal if the alien “has not been convicted of
an offense under section [212](a)(2).” (Emphasis added.) If
an alien has a conviction for an offense listed in INA
§ 212(a)(2), then he is not eligible for cancellation of
removal. The statute simply does not refer to, or incorporate
by reference, the inadmissibility waiver authority provided
in INA § 212(h). Were we to permit the Attorney General
to waive Guerrero’s disqualifying convictions for
cancellation of removal purposes, INA § 240A(b)(1)(C)’s
GUERRERO-ROQUE V. LYNCH 7
express requirement that an alien “not be[] convicted of an
offense under [INA § 212](a)(2)” would be rendered a
nullity. (Emphasis added.) As the Seventh Circuit has
observed,
the cancellation of removal provision does
not reference § [212] as a whole, but rather
references one distinct subsection,
§ [212](a)(2). Nothing in that subsection
incorporates the waiver provision in
§ [212](h). There is no reason to believe that
other provisions of the inadmissibility
statutory provision were incorporated into the
cancellation of removal provision, and such
an interpretation is inconsistent with a plain
language reading.
Barma v. Holder, 640 F.3d 749, 752 (7th Cir. 2011). We
agree with the Seventh Circuit’s analysis.
Indeed, this court came to substantially the same
conclusion in Becker v. Gonzales, 473 F.3d 1000, 1003-04
(9th Cir. 2007), in which we held that waivers of grounds for
deportability did not serve as a basis for excusing
convictions for cancellation of removal. The grounds for
waiver of both inadmissibility and deportability are limited
in their application and may not be used to waive a
conviction that bars relief under INA § 240A(b). As this
court has explained in another related context, “[a] statute
giving the Attorney General discretion to grant relief from
inadmissibility does not give the Attorney General discretion
to grant relief from removal.” Sanchez v. Holder, 560 F.3d
1028, 1032 (9th Cir. 2009) (en banc).
Because the language of the cancellation of removal
statute is unambiguous, “that is the end of the matter,”
8 GUERRERO-ROQUE V. LYNCH
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). The INA § 212(h) waiver
provision may not be used to excuse convictions that bar
relief under INA § 240A(b). INA § 212(h) permits the
Attorney General to waive only a ground of inadmissibility;
it cannot waive a conviction that bars cancellation of
removal. Because Guerrero’s shoplifting convictions
preclude him from seeking cancellation of removal, we
decline to reach his argument that treating a conviction for
the possession of marijuana as a bar to cancellation of
removal is arbitrary and capricious.
III.
For the foregoing reasons, we DENY Guerrero’s petition
for review.