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

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 ยง 70.15(1). It appears from the ...


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