Hernandez v. Holder, No. 14-1148 (4th Cir. 2015)
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In 2007, Petitioner, a native and citizen of El Salvador, was convicted of petit larceny. In 2009, the U.S. Department of Homeland Security commenced removal proceedings against Petitioner. Petitioner conceded removability but applied for cancellation of removal under 8 U.S.C. 1229b(b)(1), The immigration judge pretermitted Petitioner’s application and ordered her removed to El Salvador, concluding that her petit-larceny conviction rendered her ineligible for relief because it was a crime involving moral turpitude. The Board of Immigration Appeals (BIA) affirmed. Petitioner appealed, arguing that the BIA’s decision was based on an incorrect interpretation of section 1229b(b)(1)(C).The Fourth Circuit affirmed, holding that the BIA’s reading of section 1229b(b)(1)(C) was a permissible interpretation of the statute, entitling the BIA’s decision to Chevron deference.
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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 Before TRAXLER, Judges. Chief Judge, Decided: and NIEMEYER and April 14, 2015 MOTZ, Circuit 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 because it that section contained a rendered her prior “petit-offense crime exception.” irrelevant 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 substantive operation of those offenses. 2 sections, not the Thus, even though the 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 children, who are U.S. citizens. “temporary protected status,” in Virginia with her four In 2001, Hernandez was granted 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. for documentation After she failed to respond to a request 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). she appeared before an immigration judge in March When 2013, she conceded removability but filed an application for cancellation of removal under § 1229b(b)(1), alleging that her children would suffer hardship United if she States. were not permitted The immigration to judge remain in the 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 Hernandez had misdemeanor dismissed Hernandez’s conceded under Va. that appeal. petit Code Ann. Noting larceny -- § 18.2-96, a that Class punishable 1 by confinement in jail for not more than 12 months, id. § 18.2-11 -- is a Hernandez crime involving moral turpitude, was ineligible for the cancellation BIA of held removal that 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 4 in § 1229b(b)(1)(C), 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) aliens who had not been admitted. applied only to 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 contained in position that exception, excepted by the In response § 1182(a)(2). § 1227(a)(2), also which applies, petit-offense to contains Hernandez the no exception government’s petit-offense 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 5 § 1229b(b)(1)(C) generally 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 cancellation provision of removal disqualifies the entire from class of eligibility aliens who for have committed any offense listed in any of the three sections crossreferenced in § 1229b(b)(1)(C). does not cross-reference the It argues that § 1229b(b)(1)(C) 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. (4th Cir. 2014). See Martinez v. Holder, 740 F.3d 902, 909 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 construction of the statute.” is based on a permissible Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). To begin Nationality with, Act, 8 we recognize U.S.C. that the §§ 1101-1537, Immigration often makes and 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. (2011). See Judulang v. Holder, 132 S. Ct. 476, 479 Compare § 1182(a) (cataloging the grounds that render 7 an alien “ineligible (emphasis added)), to with be admitted § 1227(a) to the (listing United the States” 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 deportable. of whether they are inadmissible or See id. § 1229b(b)(1) (providing that the Attorney General may cancel removal of “an alien who is inadmissible or deportable,” so criteria). long Thus, as the alien regardless satisfies of whether the specified Hernandez is inadmissible or deportable, she is eligible for cancellation of removal if section she “has 1182(a)(2), not been convicted 1227(a)(2), or of an offense 1227(a)(3).” under 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 turpitude. this crimes, including a crime involving moral But the crime involving moral turpitude listed under 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 admission. that an failure within five years Id. § 1227(a)(2)(A)(i). alien to is deportable register or if a he after the date of And § 1227(a)(3) provides has been falsification convicted of certain of a entry documents. It is important to note that the cross-referenced sections -- § 1182(a)(2), themselves offenses § 1227(a)(2), criminalize that produce any and § 1227(a)(3) behavior. various Rather, immigration -- do each not lists 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. appear to Section import consequence of § the 1229b(b)(1)(C), time constraint 1227(a)(2)(A)(i) however, or because the § does not immigration 1229b(b)(1)(C) itself deals with its own consequence -- the ineligibility for cancellation of removal. consideration of only Thus, the provision appears to direct the offense 9 in the cross-referenced section. Moreover, admitted and because unadmitted § 1229b(b)(1)(C) aliens alike, addresses the both 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). references only the In short, offenses that § 1229b(b)(1)(C) preclude cross- cancellation of removal, not the immigration consequences that stem from those offenses. This of construction is § 1229b(b)(1)(C)’s further indicated surrounding by the language 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) paragraphs (1)(G) (Emphasis added). § 1229b(d)(1)(B), . . or . (2) [and] through Similarly, any is (4) under period of not of the deportable section “stop-time continuous under 1227(a).” rule” residence of 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 1227(a)(2) or 1227(a)(4).” (Emphasis added). § 1229b(b)(2)(A)(iv) 1229b(d)(1)(B) under and § section Thus, whereas explicitly specify that the crimes listed in the cross-referenced statutes must render the specific deportable, § referencing alien 1229b(b)(1)(C) only § 1229b(b)(1)(C) to the be in question lacks such crimes. inadmissible explicitness, Had interpreted in Congress the same or crosswanted 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 requiring an alien to of be how to draft inadmissible statutory removable under or language a specific charge in section [1182] or [1227]”). Hernandez maintains that if Congress had intended to crossreference 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, statutory 623 usage F.2d of 908, 914 synonyms (4th in 11 Cir. parallel 1980) (“Inadvertent sections does not 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 violence deportable unadmitted ineligible alien -- a who convicted conviction under alien for was § that 1227(a)(2) cancellation does § removal crime an that under of a renders but inadmissible of of domestic admitted not render 1182(a)(2) because alien -- “[t]he an was plain language of § 1229b indicates that it should be read to crossreference 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) conviction takes admission, and for place holding purposes within that of five § 1229b(b)(1)(C) years “Section after the 1229b(b)(1)(C), if date the of 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 considered. imposed That sections [1182(a)(2), is, or . . potentially imposed, . the statutory 1227(a)(2), and 1227(a)(3)] should be language of 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. 13 Accord 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 Chevron First, find Hernandez’s deference she notes to various the that arguments BIA’s “[c]anons against construction of affording unpersuasive. 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” “inadmissible” and must be read “deportable” are disjunctively, given separate such that meanings. She argues that this is especially so because “[t]he distinction between exclusion and deportation has long been recognized in immigration law.” § 1229b(b)(1)(C) does But not the obliterate inadmissible and deportable aliens. BIA’s the construction distinction of between 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 section 1182(a)(2), 1227(a)(2), or 1227(a)(3).” of the disjunctive defines the class of under Thus, the use 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) 8 C.F.R. § differs substantially 1240.66(b)(1), § 1229b(b)(2)(A)(iv) and which from mirrors language of structure the § 1292b(d)(1)(B). Cielo, 758 F.3d at 913-14. the of Accord Coyomani- And the Reyes court recognized as much, specifically distinguishing Cortez Canales on that ground. Reyes, 714 F.3d at 737. Third, requires Hernandez rewriting the argues that statute the read to BIA’s that construction 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 16 before they have even stepped foot in the United States.” bizarre, especially because But this result is not § 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. not for this And even if this result were bizarre, it is 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 effective § 1227(a)(2)(E)(i) date. But if this it preceded argument is no that section’s more than a disagreement with the way that the BIA distinguished those cases in Cortez explained Canales that the itself. As to petit-offense Garcia-Hernandez, exception contains the BIA 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.” Dec. at explained 307. And that with respect “Congress section [1227(a)(2)(E)(i)] applies Cortez Canales, 25 I. & N. to Gonzalez-Silva, expressly only to stated those the BIA that convictions occurring after . . . September 30, 1996,” and that the BIA was 17 bound to intent.” defer to “this Id. at 310. express statement of congressional 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). ambiguity is not construction. grievous, courts Id. * In sum, we hold that * must Where, as here, the defer to the BIA’s * 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 19
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