26 I. & N. Dec. 423
BIA2014Background
- Respondent (Mexican national) conceded removability for unlawful presence and applied for cancellation of removal under INA § 240A(b)(1).
- Respondent has multiple intoxication-related convictions, including a 2005 third-degree felony DWI with a suspended 10-year sentence and 5 years probation; aggregate confinement sentences equaled 5 years or more.
- Immigration Judge pretermitted the cancellation application as statutorily ineligible under INA § 240A(b)(1)(C) because respondent fell within INA § 212(a)(2)(B) (multiple convictions with aggregate sentences ≥5 years); IJ granted voluntary departure.
- Respondent appealed, arguing (1) the cross-reference in § 240A(b)(1)(C) to “an offense under § 212(a)(2)” should be limited to § 212(a)(2)(A) (CIMT and controlled-substance offenses), and (2) the singular term “offense” excludes § 212(a)(2)(B)’s requirement of two or more convictions.
- Board reviewed statutory text, §1 U.S.C. rule on singular/plural, legislative history, and relevant precedent, and concluded the cross-reference includes all conviction-based subsections of § 212(a)(2), including § 212(a)(2)(B).
- Appeal dismissed; voluntary departure reinstated with standard conditions and warnings.
Issues
| Issue | Respondent's Argument | Government/Board's Argument | Held |
|---|---|---|---|
| Whether the § 240A(b)(1)(C) cross-reference to “an offense under § 212(a)(2)” includes § 212(a)(2)(B) (multiple convictions totaling ≥5 years) | The cross-reference was meant to reach only § 212(a)(2)(A) offenses (CIMT and drug offenses); legislative history supports that narrower reading | The plain language refers to § 212(a)(2) generally and reasonably includes all conviction-based subsections, including § 212(a)(2)(B); singular “offense” can encompass multiple offenses under §1 U.S.C. | The Board held the cross-reference includes § 212(a)(2)(B); respondent is ineligible for cancellation under § 240A(b)(1)(C). |
| Whether the singular word “offense” in § 240A(b)(1)(C) excludes the multiple-conviction ground in § 212(a)(2)(B) | “Offense” is singular so cannot reference a clause requiring two or more convictions | 1 U.S.C. §1 allows singular words to include the plural absent contrary context; statutory context supports inclusion of multiple convictions | The Board held the singular term includes multiple offenses; § 212(a)(2)(B) applies. |
| Whether legislative history overcomes plain text ambiguity to limit the cross-reference | Relied on Conference Report language that mentions § 212(a)(2)(A) specifically | Legislative history is imprecise and cannot overcome clear statutory language; statutory text governs and is unambiguous enough | The Board rejected the legislative-history argument as unpersuasive. |
| Whether Fifth Circuit precedent supports limiting the cross-reference | Argued that cross-reference was a clerical or drafting error and should be read narrowly | Cited Ramos-Godinez (5th Cir.) which deferred to the Board’s interpretation that § 212(a)(2)(B) is included | The Board found Ramos-Godinez consistent with its interpretation and unpersuaded by the clerical-error argument. |
Key Cases Cited
- Lopez v. Sentrillon Corp., 749 F.3d 347 (5th Cir. 2014) (legislative history may be consulted only if statute ambiguous)
- Ramos-Godinez v. Mukasey, [citation="295 F. App'x 733"] (5th Cir. 2008) (Fifth Circuit deferred to BIA interpretation that § 240A(b)(1)(C) encompasses § 212(a)(2)(B))