Reyes v. HolderReyes v. Holder
This appeal requires us to interpret a rule, promulgated pursuant to the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA“), Pub.L. No. 105-100, 111 Stat. 2193, that permits the Attorney General, in his discretion, to cancel an alien‘s removal from the United States in certain circumstances, so long as the alien is not “inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)” of the Immigration and Nationality Act (“INA“).
In this case, the Board of Immigration Appeals (“BIA“) determined that petitioner Luis A. Reyes was ineligible for NACARA‘s so-called “special rule cancellation of removal” under
In these circumstances, we conclude that (1) the BIA‘s interpretation of
BACKGROUND
A. Factual History
Reyes was born in El Salvador and entered the United States illegally in June of 1986, when he was 19 years old. As relevant here, Reyes pleaded guilty on January 18, 1995, to menacing in the second degree, in violation of New York Penal Law § 120.14.4 As a Class A misdemeanor, menacing in the second degree carries a maximum prison sentence of one year. See
On March 30, 2005, Reyes was served with a Notice to Appear, charging him with being present in the United States without having been admitted, and indicating that he was “inadmissible” and subject to removal pursuant to INA § 212(a)(6)(A)(i). Reyes sought, inter alia, “special rule cancellation of removal” pursuant to NACARA, which permits the Attorney General, in his discretion, to cancel removal for qualified aliens from certain countries, including El Salvador. NACARA § 203, 11 Stat. 2160, 2198.
B. Statutory Provisions
Congress enacted NACARA in 1997 “in part to prevent the mass deportation of aliens who had arrived from some former Soviet bloc and Central American nations.” Tanov v. INS, 443 F.3d 195, 199 (2d Cir.2006); see also Romero v. INS, 399 F.3d 109, 111-12 (2d Cir.2005). Congress sought to achieve this goal by amending the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“), Pub.L. No. 104-208, Div. C., Title III-A, 110 Stat. 3009-546 (1996), “to permit qualified aliens from certain countries placed in deportation proceedings ... to apply for ‘special rule’ protection from deportation.” Tanov, 443 F.3d at 199 (internal alteration and quotation marks omitted).
In order to obtain this special rule protection, or “special rule cancellation of removal,” the applicant must “establish by a preponderance of the evidence that he ... is eligible for suspension of deportation or
Generally, § 212 of the INA sets out the reasons for which an alien seeking a visa or admission to the United States may be considered “inadmissible,” see INA § 212(a) (listing “[c]lasses of aliens ineligible for visas or admission“), whereas § 237 lists the reasons for which an alien who has already been admitted to the United States may be considered “deportable,” see INA § 237(a) (alien is “deportable” only if ”in and admitted to the United States” (emphasis added)). In other words, § 212 applies to aliens who, like Reyes, have not been legally admitted to the United States, and § 237 applies to aliens who have been legally admitted.
As relevant here, § 212(a)(2) of the INA renders an alien inadmissible to the United States if he has committed certain crimes involving moral turpitude.8 Section
Importantly, however, the particular crimes specified in the INA that make an admitted alien “deportable” are not necessarily the same crimes that make an unadmitted alien “inadmissible.” As the BIA correctly pointed out, one key difference between the crimes that render an unadmitted alien inadmissible under § 212(a)(2) and those that render an admitted alien deportable under § 237(a)(2) is the so-called “petty offense exception,” which is applicable to § 212(a)(2) but not to § 237(a)(2). Under the petty offense exception, a conviction for an offense involving moral turpitude does not render an unadmitted alien inadmissible under § 212(a)(2) when (1) the maximum penalty possible was a year or less, and (2) the alien was actually sentenced to less than six months in prison.10 INA § 212(a)(2)(A)(ii); see note 8, ante. A conviction involving a petty offense, however, may still render an admitted alien deportable under § 237(a)(2).
In Reyes‘s case, we assume that his conviction for menacing in the second degree qualifies for the petty offense exception, see note 5, ante, and therefore Reyes—who is not an admitted alien—is not inadmissible under § 212(a)(2).11 But,
C. Procedural History
In an oral decision, the Immigration Judge (“IJ“) found Reyes ineligible for special rule cancellation of removal based on his conviction for menacing in the second degree. The IJ, however, failed to address the petty offense exception. On appeal, the BIA acknowledged in a written decision that Reyes‘s menacing conviction might qualify for the petty offense exception. Nonetheless, the BIA held that Reyes is still ineligible for special rule relief because his conviction is listed among the crimes that would render an admitted alien “deportable” under § 237(a)(2). In other words, the BIA construed the special rule in
Accordingly, the question presented in this appeal is whether conviction of a crime specified under § 237(a)(2), (3) or (4) of the INA can render an unadmitted alien ineligible for special rule cancellation of removal, even though those provisions apply only to admitted aliens.
DISCUSSION
The Supreme Court has recently reaffirmed that “[w]hen an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation.”13 Decker v. Nw. Envt‘l Def. Ctr., — U.S. —, 133 S.Ct. 1326, 1337, 185 L.Ed.2d 447 (2013) (quotation marks omitted). In this case, the BIA‘s interpretation is “plainly erroneous or inconsistent with the regulation.”
Most importantly, the BIA‘s reading of the rule fails to properly apply its terms—namely, that the alien not be ”inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)” of the INA.
In reaching its conclusion, the BIA relied on its holding in Matter of Cortez, 25 I. & N. Dec. 301 (BIA 2010), in which it analyzed the statutory provision for non-NACARA cancellation of removal under § 240A of the INA.16 Under § 240A, an alien‘s removal may be cancelled if he “has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3)....” INA § 240A(b)(1)(C) (emphasis added). In Cortez, the BIA agreed with the Ninth Circuit that the broad language “an offense under” required disqualification of an inadmissible alien whose conduct was also “described under” the criminal elements of the deportation provision, INA § 237(a)(2), without regard as to whether the alien would actually be “deportable.” See Cortez, 25 I. & N. Dec. at 304 (quoting Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir.2004)).
In so finding, the BIA in Cortez contrasted the “an offense under” clause in § 240A(b)(1)(C) with another section of the INA, which provides that an alien‘s “continuous period of physical presence” shall be considered to end when the alien has committed an offense referred to in section 212(a)(2) that ”‘render[s] [the alien] inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2)....‘” Cortez, 25 I. & N. Dec. at 308 (emphasis added) (quoting § 240A(d)(1)). The BIA stated that it was the absence of those phrases—“renders the alien inadmissible” and “or removable“—in § 240A(b)(1)(C) which indicated Congress‘s intent to disqualify an unadmitted alien from § 240A relief if he has committed any offense listed under §§ 212(a)(2), 237(a)(2), or 237(a)(3). Id. The BIA‘s effort in Cortez to distinguish the “continuous period of physical presence” rule therefore not only does not support the BIA‘s decision below, but rather confirms our conclusion that an applicant‘s status is relevant to an alien‘s eligibility for special rule cancellation of removal. See also Matter of Leon, A075 586 132, 2008 WL 5477737 (BIA Dec. 5, 2008) (unpublished decision) (alien not “deportable” within meaning of
Although it may seem anomalous that a legally admitted alien can be rendered ineligible for special rule cancellation of removal while an unadmitted alien who committed the same crime can remain eligible, we have previously noted that Congress‘s harsher treatment of legal permanent residents (“LPRs“) may be justified on the basis that “an LPR‘s violation of American laws represents a greater betrayal or poses a heightened concern of recidivism, and therefore calls for harsher measures under the immigration laws.” Jankowski-Burczyk v. INS, 291 F.3d 172, 179 (2d Cir.2002); see also, e.g., Gonzalez-Gonzalez, 390 F.3d at 652 (“LPRs enjoy substantial rights and privileges not shared by other aliens, and therefore it is arguably proper to hold them to a higher standard and level of responsibility than non LPRs.” (alterations and quotation marks omitted)).
CONCLUSION
We therefore conclude:
(1) The terms “inadmissible” and “deportable,” as used in
(2) The particular crimes specified in the INA that make an admitted alien “deportable” are not necessarily the same crimes that make an unadmitted alien “inadmissible.” Accordingly, if an unadmitted alien seeks special rule cancellation of removal, the BIA should consider whether the alien is “inadmissible under section 212(a)(2) or (3)” of the INA—not whether he is “deportable under section 237(a)(2), (3) or (4)” of the INA.
(3) Accordingly, the BIA erroneously determined that Reyes is ineligible for special rule cancellation of removal on the basis that he was convicted of a crime that would make an admitted alien “deportable” under the relevant portions of the INA.
(4) Because our holding is limited to the conclusion that conviction of a crime specified under § 237(a)(2), (3) or (4) cannot render an unadmitted alien ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance
For these reasons, the petition for review is GRANTED in part (with respect to Reyes‘s claim that the BIA erred in determining that the petty offense exception could not render him eligible for special rule cancellation of removal), and the case is REMANDED for proceedings consistent with this opinion.
Notes
General rule. To establish eligibility for special rule cancellation of removal under section 309(f)(1)(A) of IIRIRA, as amended by section 203 of NACARA, the alien must establish that:
(1) The alien is not inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4) of the Act (relating to criminal activity, document fraud, failure to register, and security threats);
(2) The alien has been physically present in the United States for a continuous period of 7 years immediately preceding the date the application was filed;
(3) The alien has been a person of good moral character during the required period of continuous physical presence; and
(4) The alien‘s removal from the United States would result in extreme hardship to the alien, or to the alien‘s spouse, parent or child who is a United States citizen or an alien lawfully admitted for permanent residence.
(i) In general
Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible.
(ii) Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if—
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.