Garcia-Villareal, et al v. Holder, No. 05-76719 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 25 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MARISA GARCIA-VILLAREAL, Petitioner, No. 05-76719 Agency No. A096-234-295 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 16, 2010 San Francisco, California Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District Judge.** Marisa Garcia-Villareal is a native and citizen of Mexico who petitions for review of a decision of the Board of Immigration Appeals ( BIA ) holding that her California conviction for welfare fraud rendered her ineligible for cancellation of * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. removal under 8 U.S.C. § 1229b(b). She contends that she is eligible for cancellation because § 1229b(b)(1)(C) s reference to 8 U.S.C. § 1227(a)(2) does not apply to her as an alien who was never admitted. Garcia-Villareal s argument is foreclosed by this court s decision in Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004). In GonzalezGonzalez, we rejected the argument that crimes of domestic violence listed in § 1227(a)(2) did not apply to the alien in that case because he had never been admitted. Id. at 653. We held that § 1229b(b)(1)(C) s reference to an alien who has not been convicted of an offense under section . . . 1227(a)(2) clearly meant a conviction described under that section, and therefore that an alien can be barred from cancellation by a conviction for an offense described under § 1227(a)(2) even if the alien is not deportable under that section. Id. at 652. We also recognized in Gonzalez-Gonzalez that Chevron deference to the BIA would apply if § 1229b(b)(1)(C) were ambiguous. Id. at 651. Here, even if we were to hold that § 1229b(b)(1)(C) is ambiguous insofar as it may apply to a person seeking to qualify for the petty offense exception to a crime involving moral turpitude under § 1182(a)(2)(A)(ii)(II), the same Chevron deference would apply. The BIA has recently issued a published opinion holding that the petty offense exception is irrelevant when an alien is otherwise ineligible for 2 cancellation because of a conviction for a crime described under § 1227(a)(2). See Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 776 (BIA 2009). As the BIA s interpretation of the statute is reasonable, Garcia-Villareal s attempt to distinguish Gonzalez-Gonzalez as dealing with a separate provision in the deportability statute fails. The petition for review is DENIED. 3
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