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Luis A. Reyes, Aka Luis Alberto Molina Reyes v. Eric H. Holder

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012


May 3, 2013

LUIS A. REYES, AKA LUIS ALBERTO MOLINA REYES, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.

Per curiam.

11-5409-ag Reyes v. Holder

(Submitted: March 22, 2013

Before: CABRANES, LIVINGSTON, Circuit Judges, and FURMAN, District Judge.*fn1

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"). 8 C.F.R. § 1240.66(b)(1) (emphasis added).

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." In particular, even though it assumed that Reyes would not be "inadmissible" under § 212 because his conviction for menacing in the second degree fell within the "petty offense exception," the BIA concluded that Reyes was ineligible for cancellation of removal because his conviction is listed under § 237, which does not contain the "petty offense exception." The BIA's interpretation of the rule, however, fails to properly apply the legal terms "inadmissible" and "deportable." An alien is ineligible for special rule cancellation of removal if he is "deportable" under § 237, but Reyes was never admitted to the United States and therefore"by definition"is not "deportable" under § 237.

In these circumstances, we conclude that (1) the BIA's interpretation of 8 C.F.R. § 1240.66(b)(1) is inconsistent with the regulation, and (2) as an unadmitted alien, Reyes cannot be ineligible for special rule cancellation of removal on the basis of a conviction that would make an admitted alien "deportable" under § 237 of the INA. Because our holding is limited to the conclusion that conviction of a crime specified under § 237 cannot render Reyes, as an unadmitted alien, ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes.

Petition granted in part; remanded.

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"). 8 C.F.R. § 1240.66(b)(1) (emphasis supplied). According to the plain text of this regulation, the terms "inadmissible" and "deportable" are defined by the provisions to which they refer in the INA. Consequently, an alien seeking lawful entry to the United States is "inadmissible" if he is ineligible for admission to the United States for any of a number of reasons set out in § 212.*fn2

Similarly, but separately, an alien is "deportable" if he was legally admitted to the United States but may now be removed for any of a number of reasons set out in § 237.*fn3 See Judulang v. Holder, 132 S. Ct. 476, 479 (2011) (comparing inadmissibility with deportability).

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 § 1240.66(b)(1) because Reyes-an unadmitted alien-had a conviction for menacing in the second degree that would make an admitted alien "deportable" under § 237. In particular, the BIA explained that, even if Reyes's prior conviction fell within the "petty offense exception" and therefore would not block his admissibility under § 212, that conviction still made him ineligible for special rule cancellation of removal because it is one of the offenses listed under § 237, which does not contain the "petty offense exception." The BIA's interpretation of the rule, however, fails to properly apply the legal terms "inadmissible" and "deportable." An alien is ineligible for special rule cancellation of removal if he is "deportable" under § 237, but Reyes was never admitted to the United States and therefore"by definition"is not "deportable" under § 237.

In these circumstances, we conclude that (1) the BIA's interpretation of 8 C.F.R. § 1240.66(b)(1) is inconsistent with the regulation, and (2) as an unadmitted alien, Reyes cannot be ineligible for special rule cancellation of removal on the basis of a conviction that would make an admitted alien "deportable" under § 237 of the INA.*fn4 Because our holding is limited to the conclusion that conviction of a crime specified under § 237 cannot render Reyes, as an unadmitted alien, ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes.

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.*fn5 As a Class A misdemeanor, menacing in the second degree carries a maximum prison sentence of one year. See N.Y. Penal Law § 70.15(1). It appears from the Administrative Record that Reyes received no jail time and was sentenced only to three years of probation.*fn6

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 special rule cancellation of removal and that discretion should be exercised to grant relief." 8 C.F.R. § 1240.64(a); see also Gonzalez-Ruano v. Holder, 662 F.3d 59, 61 (1st Cir. 2011). To be eligible, the applicant must show that (1) he "is not inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)" of the INA; (2) he has been physically present in the United States for a continuous period of seven years immediately preceding the date of his application for relief is filed; (3) he "has been a person of good moral character during the required period of continuous physical presence"; and(4) he or a qualifying relative will suffer extreme hardship as a result of his removal.*fn7 8 C.F.R. § 1240.66(b).*fn8 This appeal concerns the first of these requirements-that an applicant for special rule cancellation of removal be not "inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)" of the INA. Id. § 1240.66(b)(1).

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.*fn9 Section 237(a)(2) of the INA likewise renders an already-admitted alien deportable if he has committed certain crimes involving moral turpitude.*fn10 Accordingly, in order to be eligible for special rule cancellation of removal, an alien cannot be (1) inadmissible by virtue of having committed certain crimes specified in the INA, or (2) deportable by virtue of having committed certain crimes specified in the INA.

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.*fn11 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).*fn12 But, remarkably, if Reyes were an admitted alien, his conviction would render him deportable under § 237(a)(2).*fn13

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 8 C.F.R. § 1240.66(b), see note 7, ante, as making aliens ineligible for cancellation of removal if they have committed any of the crimes listed in § 212(a)(2) and (3) or § 237(a)(2), (3) and (4) of the INA, regardless of whether the alien at issue is actually "inadmissible" or "deportable" under those provisions, respectively.

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."*fn14 Decker v. Nw. Envt'l Def. Ctr., 133 S. Ct. 1326, 1337 (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. 8 C.F.R. § 1240.66(b)(1) (emphasis added). Indeed, the plain language of this provision"which straightforwardly adopts Congress's use of the legal terms "inadmissible" and "deportable""demonstrates that an applicant's admission status (i.e., admitted or not admitted) is critical when determining an alien's eligibility for special rule cancellation of removal. According to the plain text of § 1240.66(b)(1), the terms "inadmissible" and "deportable" are defined by the provisions to which they refer in the INA, and an alien is deportable only if "in and admitted to the United States." INA § 237(a) (emphasis added).*fn15 Because Reyes was not "admitted to the United States," he is not "deportable" under § 237(a).*fn16

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.*fn17 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 8 C.F.R. § 1240.66(b)(1) "because he was never actually 'admitted to the United States.'" (quoting INA § 237(a)).

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)).

In sum, 8 C.F.R. § 1240.66(b)(1) means what it says: In order to be eligible for special rule cancellation of removal under that provision, an alien must not be inadmissible by virtue of having committed certain crimes specified in § 212 of the INA or deportable by virtue of having committed certain crimes specified in § 237 of the INA. Inasmuch as Reyes is not deportable, his conviction of a crime listed in § 237 cannot render him ineligible for special rule cancellation of removal. The BIA therefore erred in determining that Reyes is ineligible on the basis that he committed a crime specified in § 237. Because our holding is limited to the conclusion that conviction of a crime specified under § 237 cannot make an unadmitted alien ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes.*fn18

CONCLUSION

We therefore conclude:

(1) The terms "inadmissible" and "deportable," as used in 8 C.F.R. § 1240.66(b)(1), are defined by the provisions to which they refer in the Immigration and Nationality Act, and therefore an alien who was not "admitted to the United States," INA § 237(a), cannot be found ineligible for special rule cancellation of removal on the basis that he is "deportable."

(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. 8 C.F.R. § 1240.66(b)(1). As relevant here, for example, if an unadmitted alien has a single conviction involving a crime of moral turpitude, the BIA should evaluate whether that conviction qualifies for the petty offense exception set out in § 212 of the INA, regardless of whether that conviction would render an admitted alien deportable under § 237.

(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 any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes.

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.


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