Rony Alexander Paz CALIX, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent.
No. 13-60764.
United States Court of Appeals, Fifth Circuit.
April 28, 2015.
Concluding that the district court lacked jurisdiction to entertain this suit, we VACATE the district court‘s judgment and REMAND this case to that court with instructions to dismiss the complaint for lack of jurisdiction.
VACATED and REMANDED.
Alex Macias Torres, Torres Law Firm, Bellaire, TX, Brian Keith Bates, Esq. (argued), Houston, TX, for Petitioner.
Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
Rony Alexander Paz Calix seeks review of the Board of Immigration Appeals’ ruling that he is ineligible for cancellation of removal under the “stop-time rule.” The government argues that this court may not consider his claim because he failed to exhaust his administrative remedies. We conclude that we have jurisdiction over the claim. On the merits, we agree with the BIA‘s holding that Paz Calix is ineligible for cancellation of removal. We therefore DENY the petition for review.
FACTS AND PROCEDURAL BACKGROUND
Rony Alexander Paz Calix, a native and citizen of Honduras, entered the United States in December 1997 as a lawful permanent-resident alien. He was convicted in February 2001 for possession of marijuana and in July 2007 for possession of cocaine.
In October 2009, the Department of Homeland Security charged Paz Calix with deportability under the
Paz Calix timely appealed to the Board of Immigration Appeals (“BIA“). In his
Paz Calix timely filed a petition for review with this court. The government, in addition to contesting the substance of Paz Calix‘s claim, argues that this court may not reach the claim because Paz Calix did not adequately raise it before the BIA and therefore failed to exhaust his administrative remedies.
DISCUSSION
I. Jurisdiction to Hear Paz Calix‘s Claims
A court may not review a final order of the BIA unless the alien has exhausted all administrative remedies.
Paz Calix argued both to the IJ and to the BIA that his 2001 conviction did not trigger the stop-time rule because he “was already admitted as a Lawful Permanent Resident on December 15, 1997, and he is not an arriving alien currently seeking admission into the United States.” He cited an unpublished BIA decision which held that a lawful permanent-resident alien in a situation analogous to Paz Calix‘s “is not regarded as seeking admission....” In re Lara-Terrazas, No. A36 587 673, 2006 WL 3922203, at *1 (BIA Dec. 11, 2006). The single member of the BIA who resolved Paz Calix‘s appeal did not mention Lara-Terrazas (though the IJ did), instead interpreting a later published BIA decision as holding that if an alien‘s crimes would render him inadmissible, continuous residence effectively ended even for a lawful permanent resident. See In re Jurado-Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006).
Despite the specific language in Paz Calix‘s brief and the BIA‘s explicit rejection of his claim, the government argues that Paz Calix did not adequately present his claim and thus did not exhaust his administrative remedies regarding that claim. The principal shortcoming, the government argues, is the “complete dearth of legal support” for his construction of the stop-time rule. As we discuss below, there is little authority for either side to cite on this precise question. The Lara-Terrazas decision that Paz Calix did cite is one of the most relevant precedents supporting his claim. The BIA understood the argument and considered it. We see no failure to exhaust.
Similarly, appellate briefs must adequately present a legal argument by, among other things, providing citations to authorities. See L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir.1994). Our refusal to consider poorly briefed arguments derives from the appellate rule requiring an appellant‘s brief to contain “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies....”
Courts generally cannot review final orders of removal, including the exercise of discretion to grant or deny relief under Section 1229b. See
The Attorney General may cancel the removal of a lawful permanent-resident alien if, among other factors not at issue here, the alien “has resided in the United States continuously for 7 years after having been admitted in any status....”
Paz Calix concedes that he committed an offense referred to under
Whether a lawful permanent-resident alien who is not seeking admission is barred from cancellation of removal for having been “rendered inadmissible to the United States” for purposes of the stop-time rule is a question of first impression
In interpreting the stop-time rule, we consider “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If so, we must “give effect to the unambiguously expressed intent of Congress.” Id. at 843. When, instead, “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. This approach “is premised on the theory that a statute‘s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).
a. Chevron Step One
“A statute is ambiguous if it is susceptible of more than one accepted meaning.” United Servs. Auto. Ass‘n v. Perry, 102 F.3d 144, 146 (5th Cir.1996). Multiple accepted meanings do not exist merely because a statute‘s “authors did not have the forethought expressly to contradict any creative contortion that may later be constructed to expand or prune its scope.” Moore v. Hannon Food Serv., Inc., 317 F.3d 489, 497 (5th Cir.2003). Thus, a court must determine whether “all but one of the meanings is ordinarily eliminated by context.” Deal v. United States, 508 U.S. 129, 132-33, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). If, however, contextual clues do not reveal a single accepted meaning, “[i]t is eminently reasonable to conclude that [a statute‘s] silence is meant to convey nothing more than a refusal to tie the agency‘s hands....” Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009); see also U.S. v. Home Concrete & Supply, LLC, — U.S. —, 132 S.Ct. 1836, 1843, 182 L.Ed.2d 746 (2012).
In order to conduct this analysis, “we avail ourselves of the traditional means of statutory interpretation, which include the text itself, its history, and its purpose.” Bellum v. PCE Constructors, Inc., 407 F.3d 734, 739 (5th Cir.2005) (citation omitted). “[W]hen traditional methods of statutory construction fail to reveal a provision‘s meaning ... we conclude that it is ambiguous.” United Servs. Auto. Ass‘n, 102 F.3d at 147.
A key phrase for us from
Paz Calix argues that we should reject the government‘s interpretation because it violates the principle “that a statute must, if possible, be construed in such fashion that every word has some operative effect.” United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). If an offense “that renders the alien inadmissible to the United States under section 1182(a)(2)” is one “referred to in section 1182(a)(2),” then the “renders ... inadmissible” language serves no purpose. Furthermore, if an offense referred to in
The government responds that the stop-time rule was one feature of a congressional overhaul of immigration statutes. Accordingly, the government reasons that it is understandable that certain superfluities appear in the statute. The government discusses a BIA decision characterizing the stop-time rule‘s reference to
In determining what to make of the surplusage argument, we broaden our perspective. The stop-time rule requires an alien to commit an offense listed in Section 1182(a)(2) that “renders the alien inadmissible....” We should not, then, ignore the language of
Additionally, we consider if the stop-time rule unambiguously resolves whether being rendered inadmissible matters if the alien is not seeking admission. Paz Calix relies on analysis in a BIA decision that the stop-time rule does not apply in that situation. See Lara-Terrazas, 2006 WL 3922203, at *1. Because the decision was issued by a single board member and has no precedential effect, we may not defer to its analysis under Chevron. See Dhuka v. Holder, 716 F.3d 149, 155-56 (5th Cir. 2013). We may, however, consider the persuasiveness of its reasoning in determining if the statute is ambiguous.
In Lara-Terrazas, the single member of the BIA discussed the INA‘s definition of “admission,” which provides that a lawful permanent-resident alien may not be regarded as seeking admission except in certain narrow circumstances not applicable here. See Lara-Terrazas, 2006 WL 3922203, at *1 (citing
By focusing exclusively on the general application of Section 1182(a)(2), the board member did not consider whether for purposes of the stop-time rule, Congress had given Section 1182(a)(2) a different effect. Congress could have decided that any of the offenses identified in the stop-time rule would end an alien‘s continuous residence or presence no matter what the alien‘s immigration status was when later seeking cancellation of removal. Our question depends as much on the language of the stop-time rule as on the language of the section on inadmissibility. We see no clear answer.
The stop-time rule is ambiguous as to whether an offense that would make an individual inadmissible ends the continuous residence of an alien who is not seeking admission. We examine the BIA‘s conclusions on that issue and also its interpretation of the ambiguous word “renders.”
b. Chevron Step Two
When a statute is ambiguous, we defer to an agency‘s reasonable interpretation. Chevron, 467 U.S. at 842. “An agency‘s interpretation is permissible if it is reasonable. The question of reasonableness is not whether the agency‘s interpretation is the only possible interpretation or whether it is the most reasonable, [but] merely whether it is reasonable vel non.” ConocoPhillips Co. v. EPA, 612 F.3d 822, 831 (5th Cir.2010). Interpretations established through adjudication warrant Chevron deference so long as they were established prior to the case under consideration. R & W Technical Servs. Ltd. v. Commodity Futures Trading Comm‘n, 205 F.3d 165, 171 (5th Cir.2000).
Our first concern is to understand the work that “renders” does in making time stop under this rule. In an en banc decision, the BIA addressed two interpretive questions that apply here. See In re Perez, 22 I. & N. Dec. 689, 693-94 (BIA 1999). First, the BIA decided whether continuous residence ends when an alien commits an offense or not until convicted of the offense. The BIA majority held that the commission of an offense terminates continuous residence. See id. Though the BIA was addressing deportation instead of inadmissibility, its interpretation applies to both. See id.
“[R]enders” ... is a restrictive clause which modifies the word “offense” by limiting and defining the types of offenses which cut off the accrual of further time as of the date of their commission. Thus, it implicitly requires that the steps necessary to “render” an alien inadmissible or removable shall have occurred before the offense qualifies for section [1229b(d)(1)] purposes.
Id. at 693. The BIA stated that “the respondent was ultimately ‘rendered’ deportable under section [1227(a)(2)(B)(i)] by his conviction.... Hence, his conviction placed his offense within those specified in section [1229b(d)(1)] for purposes of terminating continuous residence.” Id.
In a much earlier decision that In re Perez cites, the BIA had used “renders” in a similar manner. In that case, an alien was removed under an INA provision applicable to aliens who had been “convicted of a crime involving moral turpitude” and either sentenced to confinement or confined for a year or more. See Matter of P, 6 I. & N. Dec. 788, 789-90 (BIA 1955). The BIA explained that “[i]t takes the commission of the crime plus the conviction and the sentence to render [an alien] deportable under this section.” Id. at 790. The BIA echoed this language in a later opinion, stating that “it is the conviction, not the commission of the offense, that renders the alien deportable.” Matter of Lozada, 19 I. & N. Dec. 637, 640 (BIA 1988).
These cases demonstrate that the BIA has at least since 1955 used “renders” to mean that something, such as a conviction, gives immigration consequence to the commission of an offense. That meaning could easily have shaped the stop-time rule, which was added to the INA in the
The interpretations in Perez, Lozada, and Matter of P are reasonable. Under those interpretations, the “renders ... inadmissible” language is not redundant. An alien first must commit an offense referred to in Section 1182(a)(2). The commission will end continuous residence if the offender is rendered inadmissible by something more, such as conviction or admitting to the offense, as specified in the applicable portion of Section 1182(a)(2).
Having accepted the BIA‘s interpretation of “renders inadmissible,” we next address the closely related question of whether an alien must be seeking admission in order for that language to apply. The government, as did the BIA, relies on a decision in which a lawful permanent-resident alien was charged with removal for having been convicted of two morally turpitudinous crimes. See In re Jurado-Delgado, 24 I & N. Dec. 29, 30 (BIA 2006). There the government argued that the alien did not qualify for cancellation of removal because both of the convictions triggered the stop-time rule. Id. The IJ held that those charges were irrelevant under the stop-time rule because “they were not the basis of a charge and finding of removability.” Id. The BIA reversed. It held that an offense that “renders the alien inadmissible” was one that caused the alien to be “potentially removable if so charged.” Id. at 31. Thus, the BIA “conclude[d] that an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct in question to terminate continuous residence in this country.” Id.
The BIA in Jurado-Delgado clearly answered one narrow question. It held that an alien could be charged with removal on one ground and be ineligible for cancellation of removal because of another ground. The opinion does not explicitly answer whether a lawful permanent resident who does not need to be admitted nonetheless has his period of continuous residence stopped by an offense rendering him inadmissible. The effect of the decision, though, was to deny eligibility for cancellation of removal based on inadmissibility even though the lawful permanent-resident alien was not seeking admission, rejecting by result if not reasoning the argument that Paz Calix makes here. Because we discover no holding to that effect, we find no grounds for deference under Chevron Step 2. An issue not discussed by an agency should not be seen as having implicitly been resolved in the way necessary to support the decision and the implication then be given deference.
Able judges in a sister circuit read the BIA‘s Jurado-Delgado opinion as actually resolving that a lawful permanent resident not seeking admission has his continuous residence stopped by an offense rendering aliens inadmissible. See Ardon v. U.S. Att‘y Gen., 449 Fed.Appx. 116, 118 (3d Cir.2011). As the remainder of our opinion shows, we reach the same result as did the Third Circuit. We just do not do so under Chevron.
The premise of Chevron is that a court has before it “an agency‘s construction of the statute which it administers” and must decide the relevance of that construction. Chevron, 467 U.S. at 842. A “court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Id. at 843. In our case, administrative interpretations only partially resolve the issues. We must therefore impose our own construction on the stop-time rule as to ambiguous issues left in the interstices of the BIA‘s decisions. To do so, we examine a slightly different but analogous line of authorities.
The generic question for us is whether one section of the INA that cross-references another necessarily adopts the entirety of the second section—its limitations, qualifiers, or procedures. We considered such an issue when we interpreted a different provision of Section 1229b, the statute that contains the stop-time rule. See Nino v. Holder, 690 F.3d 691 (5th Cir.2012). Instead of Section 1229b(d)(1), we interpreted Section 1229b(b). Part of that section allows cancellation of the removal of an alien who, among other restrictions, “has not been convicted of an offense under section ... 1227(a)(2)....”
We conclude that Section 1229b(b)(1)(C), 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. For purposes of that ineligibility, it does not matter when the offense occurred in relation to the alien‘s admission.
In Nino, we discussed the stop-time rule language as a contrast. As we well know from the discussion so far in the current opinion, the stop-time rule (which was not relevant in Nino other than for the contrast it allowed) goes beyond just referring to convictions of offenses under another section of the INA. We stated in Nino that the stop-time rule “provides that the offense must have been committed and have rendered the alien inadmissible or removable.” Id. at 697. Such specificity was absent in the cross-reference relevant in Nino, supporting the conclusion that the two different cross-references—one just to offenses under another section, and the second to offenses that render an alien inadmissible or removable—did not operate the same. Id.
Other circuits and the BIA have reached similar conclusions about the section we interpreted in Nino.7 Those opinions also contrasted the language of the stop-time rule. See, e.g., Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 650 (9th Cir.2004). The BIA used a helpful phrase when it labeled the additional requirements of the cross-referenced Sections 1182(a)(2) and 1227(a)(2)—e.g., that a relevant crime was committed within a certain time period, or that it is not a “petty offense“—as the “immigration-related provisions[.]” Matter of Cortez, 25 I. & N. Dec. 301, 308 (BIA 2010). Some courts, though, may have gone further than necessary to contrast the manner in which the stop-time rule is written with the phrasing of the statute actually at issue in their case. For example, the Ninth Circuit stated that, had Section 1229b(b)(1)(C) been written using language comparable to what is in the stop-time rule, it would “tend to support Gonzalez-Gonzalez‘s interpretation” that all of the limitations of the other statute applied. Gonzalez-Gonzalez, 390 F.3d at 652-53. Logically, there are three categories of potential incorporation of immigration-related provisions—not just all or none, but all, some, or none. As we will explain, the stop-time rule is best understood as an incorporation of some of the immigration-related provisions.
As was evident in our Nino analysis, the language of each INA cross-reference must be examined carefully. As to the stop-time rule‘s language, we have ana-
To answer, we start by walking through the statutory steps relevant to Paz Calix‘s possible removal. His removal was based on a 2007 cocaine offense. He conceded he was removable for that offense under
Time also is stopped if a Section 1182(a)(2) offense makes an alien removable under Section 1227(a)(2).
Regardless of whether any examples of such distinctions exist, the stop-time rule blends offenses that make aliens inadmissible with those making them deportable or removable. Any offense that triggers the stop-time rule will halt the period of continuous residence for those who are seeking admission and those who have already been admitted. Congress used the offenses in Section 1182(a)(2) that establish inadmissibility as the basis, subject to the “renders” language, for stopping the running of the continuous period needed for anyone who seeks cancellation of removal.
When Paz Calix committed an offense rendering him inadmissible, it could not then be known whether in later removal proceedings he would need to seek admission. Lawful permanent-resident aliens do at times need to be admitted, such as when they have abandoned that status or have been absent for more than 180 days. See
We conclude that the stop-time rule borrows only some of the immigration-related provisions of the cross-referenced Sections 1182(a)(2) and 1227(a)(2). To be clear, we are not holding that a section of the INA must restate all the terms in a cross-referenced section before those terms are relevant. Each cross-reference must be examined carefully. Unlike in Nino, we have found this cross-reference ambiguous.
Paz Calix‘s offense of possession of marijuana is referred to in
Petition DENIED.
LESLIE H. SOUTHWICK
UNITED STATES CIRCUIT JUDGE