Gomez Heredia v. Sessions , 865 F.3d 60 ( 2017 )

16-1465-ag(L)
Gomez Heredia v. Sessions
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2016
(Argued: May 5, 2017 Decided: July 27, 2017)
Docket Nos. 16-1465-ag, 16-3346-ag
HOXQUELIN GOMEZ HEREDIA, a/k/a OQUELIN GOMEZHEREDIA,
a/k/a SOKELIN HEREDIA,
Petitioner,
— v. —
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.*
Before:
WALKER, LIVINGSTON, and LYNCH, Circuit Judges.
Hoxquelin Gomez Heredia seeks review of two decisions of the Board of
Immigration Appeals denying him relief. In the first challenged decision, the BIA
dismissed the petitioner’s appeal, affirming the Immigration Judge’s conclusion
*
The Clerk of Court is directed to amend the captions as set forth above.
that he was a non-citizen convicted of drug offenses that made him inadmissible
to the United States. In the second, the BIA denied the petitioner’s motion to
reopen the proceedings, concluding that he was not eligible for cancellation of
removal, a discretionary form of relief from removal that is available to lawful
permanent residents who meet certain requirements. On appeal, the petitioner
contends that the BIA erred in two ways. First, he argues that he should not have
been treated as seeking admission to the United States when he returned from a
short trip abroad in 2015. Second, he argues that he is eligible for cancellation of
removal because his 1999 drug offense did not prevent him from accruing seven
years of residency in the United States, which is a requirement for cancellation of
removal. We disagree. Accordingly, the consolidated petitions for review are
DENIED. Since we have completed our review, the pending motion for stay of
removal is DENIED as moot.
WILLIAM C. MENARD, Baurkot & Baurkot, Easton, PA
(Raymond G. Lahoud, Norris, McLauglin & Marcus,
P.A., Allentown, PA, on the brief) for Petitioner
Hoxquelin Gomez Heredia.
VICTORIA BRAGA, Trial Attorney (Surell Brady, Trial Attorney,
Chad A. Readler, Acting Assistant Attorney General,
and Cindy S. Ferrier, Assistant Director, on the brief),
United States Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for
Respondent Jefferson B. Sessions, III.
GERARD E. LYNCH, Circuit Judge:
Hoxquelin Gomez Heredia (“Gomez”) seeks review of two decisions of the
Board of Immigration Appeals (“BIA”) denying him relief. In the first challenged
decision, the BIA dismissed Gomez’s appeal, affirming the Immigration Judge’s
2
(“IJ”) conclusion that he was a non-citizen convicted of drug offenses that made
him inadmissible to the United States. In the second, the BIA denied Gomez’s
motion to reopen the proceedings, concluding that he was not eligible for
cancellation of removal, a discretionary form of relief from removal that is
available to lawful permanent residents who meet certain requirements. On
appeal, Gomez contends that the BIA erred in two ways. First, he argues that he
should not have been treated as seeking admission to the United States when he
returned from a short trip abroad in 2015. Second, he argues that he is eligible for
cancellation of removal because his 1999 drug offense did not prevent him from
accruing seven years of residency in the United States, which is a requirement for
cancellation of removal.
We disagree. Accordingly, the consolidated petitions for review are
DENIED. Since we have completed our review, the pending motion for stay of
removal is DENIED as moot.
BACKGROUND
Gomez, a native and citizen of the Dominican Republic, entered the United
States as a lawful permanent resident in August 1997. In 1999, he was convicted
of criminal possession of marijuana in the fifth degree under New York Penal
3
Law (“NYPL”) § 221.10. In 2010, he was convicted of criminal possession of a
narcotic (cocaine) with intent to sell under NYPL § 220.16(1), which is an
aggravated felony under the Immigration and Nationality Act (“INA”) because it
is a drug trafficking offense. See 8 U.S.C. § 1101(a)(43)(B); Harbin v. Sessions, 860
F.3d 58, 63 (2d Cir. 2017). In June 2015, Gomez took a short trip to the Dominican
Republic. Upon his return, he was treated as a lawful permanent resident
“seeking an admission into the United States” because he had been convicted of
an enumerated drug offense. 8 U.S.C. § 1101(a)(13)(C)(v); see id.§ 1182(a)(2)(A)(i)(II). That same day, he was charged as inadmissible and subject
to removal because of his two drug convictions.
On January 12, 2016, after granting several continuances, an IJ ordered
Gomez removed. The IJ noted that Gomez had not applied for cancellation of
removal, a discretionary form of relief available to lawful permanent residents
who meet three requirements. Those requirements, generally speaking, are: (1)
five years of lawful admission for permanent residence; (2) seven years of
continuous residence in the United States “after having been admitted in any
status”; and (3) no aggravated felony convictions. Id. § 1229b(a). Although the IJ
did not reach the issue, Gomez was apparently not eligible for cancellation of
4
removal at the time of its decision because his 2010 conviction was for an
aggravated felony.1
In May 2016, the BIA affirmed. The BIA noted that “[r]elief from removal is
not an issue on appeal,” Certified Administrative Record (“CAR”) 79 n.1,
meaning that Gomez did not raise any issues regarding his eligibility for
cancellation of removal. Instead, Gomez argued that he should not have been
classified as seeking admission in 2015 when he arrived home after his short trip
to the Dominican Republic. The BIA rejected that argument, relying on its prior
decision, In re Collado-Munoz, 21 I. & N. Dec. 1061, 1063-66 (B.I.A. 1998), which
held that the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. 104-208, 110 Stat. 3009-546 (“IIRIRA”), overruled the equitable
doctrine (“Fleuti doctrine”) that had allowed lawful permanent residents to take
innocent, casual, and brief trips abroad without applying for admission upon
1
Gomez discussed his eligibility for cancellation of removal at a September 1,
2015 hearing before the IJ. At that hearing, counsel for Gomez indicated that she
had prepared an application for cancellation of removal, but that she had a
“potential concern around eligibility,” Certified Administrative Record 164,
because at the time counsel did not know whether Gomez had in fact pled guilty
to a drug trafficking crime. Presumably, once counsel discovered that Gomez had
a conviction for an aggravated felony, she declined to pursue cancellation of
removal.
5
their return. See Rosenberg v. Fleuti, 374 U.S. 449, 461-62 (1963). Thus, according to
the BIA, Gomez was properly subjected to readmission procedures when he
arrived in the United States in 2015 under the relevant provision of the INA as
amended by IIRIRA, 8 U.S.C. § 1101(a)(13)(C)(v). The BIA also noted Gomez’s
continued efforts to vacate his 2010 aggravated felony conviction, and wrote that,
if Gomez succeeded in having any of his convictions vacated, he was free to ask
the BIA to reopen his case to consider the changed circumstances. In No. 16-1465,
Gomez petitions for review of the BIA’s initial dismissal of his appeal, arguing
that the BIA erred in concluding that he was properly treated as seeking
admission when he returned to New York in 2015.
Shortly after the BIA issued its first decision, a New York court vacated
Gomez’s 2010 aggravated felony conviction and Gomez pled guilty to possession
of a narcotic substance of one half ounce or more, NYPL § 220.16(12). The new
conviction was not for a drug trafficking offense; thus, it is not an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B). Gomez then timely moved to reopen his
removal proceeding and applied for cancellation of removal. He argued that,
absent the aggravated felony conviction, he was eligible for cancellation of
removal, implicitly claiming that he satisfied its other two requirements: that he
6
was a lawful permanent resident for more than five years and that he had resided
continuously in the United States for more than seven. See 8 U.S.C. § 1229b(a)(1)-
(2).
In September 2016, the BIA denied reopening. Although the BIA
acknowledged that Gomez no longer had an aggravated felony conviction, it
determined that he had not demonstrated prima facie eligibility for cancellation of
removal because his 1999 marijuana offense triggered the “stop-time rule,” which
prevented him from accruing the required seven years of continuous residency in
the United States. The intricacies of the stop-time rule will be discussed in detail
below. In No. 16-3346, Gomez seeks review of the BIA’s denial of his motion to
reopen. He argues that the stop-time rule was not triggered until he applied for
admission in 2015 when he returned from the Dominican Republic, and therefore
that he accrued more than seven years of continuous residency in the United
States. His petitions for review have been consolidated.
DISCUSSION
The consolidated petitions for review raise two issues. First, Gomez
contends that the BIA erred in dismissing his initial appeal because it mistakenly
concluded that IIRIRA overruled the Fleuti doctrine. See Fleuti, 374 U.S. at 461-62.
7
Second, he argues that the BIA abused its discretion in denying his motion to
reopen because it incorrectly held that he was ineligible for cancellation of
removal because of the stop-time rule. For the following reasons, we find both
arguments unpersuasive.2
I. IIRIRA overruled the Fleuti doctrine.
“Under [Fleuti], a lawful permanent resident of the United States was not
subject to exclusion proceedings . . . if the lawful permanent resident’s departure
from the United States was an innocent, casual, and brief excursion.” Centurion v.
Sessions, 860 F.3d 69, 72 (2d Cir. 2017) (internal quotation marks omitted). “In
other words, lawful permanent residents could come and go from the United
States on short trips without formally seeking admission.” Id. IIRIRA, however,
changed the “immigration law landscape” with respect to lawful permanent
2
Because Gomez was deemed inadmissible due to a drug offense, our review of
the petitions is limited to constitutional and other legal questions, 8 U.S.C.
§ 1252(a)(2)(C), (D), which we review de novo, Chambers v. Office of Chief Counsel,
494 F.3d 274, 277 (2d Cir. 2007). Although we review questions of law de novo, we
“must give appropriate deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council Inc., 467 U.S. 837 (1984), to the BIA’s published, precedential
interpretations of the [INA].” Baraket v. Holder, 632 F.3d 56, 58 (2d Cir. 2011). Both
petitions raise issues of “legal prescription or statutory interpretation,” which
“we unambiguously have jurisdiction to review.” Rosario v. Holder, 627 F.3d 58,
61 (2d Cir. 2010); see Harbin, 860 F.3d at 63 (adjudicating petition concerning
eligibility for cancellation of removal).
8
residents leaving and reentering the United States. Id. As relevant here, IIRIRA
amended the INA to provide that an “alien lawfully admitted for permanent
residence . . . shall not be regarded as seeking an admission into the United States
for purposes of the immigration laws unless the alien . . . has committed an
offense identified in [§] 1182(a)(2),” which includes drug offenses. 8 U.S.C.
§ 1101(a)(13)(C)(v). Since IIRIRA, therefore, “a lawful permanent resident must
seek formal admission—even if returning from a brief trip abroad—if he has
committed a drug offense.” Centurion, 860 F.3d at 72. “In turn, a lawful
permanent resident who has been convicted of or who admits committing a drug
offense . . . is inadmissible.” Id.
Gomez argues that he should not have been treated as seeking admission
under 8 U.S.C. § 1101(a)(13)(C)(v) because his trip was “innocent, casual, and
brief” under Fleuti, 374 U.S. at 462, and the BIA erred in concluding that IIRIRA
overruled the Fleuti doctrine.3 He is wrong. As we recently explained, “[t]hrough
3
In support of his argument, Gomez incorrectly asserts that the Fleuti doctrine
was a constitutional rule protecting the due process rights of lawful permanent
residents. As the Court wrote in Fleuti, that decision rested on a “threshold issue
of statutory interpretation,” not a constitutional question. Fleuti, 374 U.S. at 451;
see Othi v. Holder, 734 F.3d 259, 268 (4th Cir. 2013) (“Fleuti was unmistakably not a
constitutional case.”).
9
the passage of IIRIRA in 1996, Congress ended the Fleuti doctrine.” Centurion, 860
F.3d at 72. We first reached that conclusion in Vartelas v. Holder, 620 F.3d 108, 116-
17 (2d Cir. 2010), rev’d on other grounds, 566 U.S. 257 (2012). Although the
Supreme Court reversed Vartelas in part, it “left untouched the portion of our
decision in which we deferred to the BIA and held that IIRIRA overruled the
Fleuti doctrine.” Centurion, 860 F.3d at 72 n.1; see also In re Collado-Munoz, 21 I. &
N. Dec. at 1065. “Thus, we adhere to the portion of our decision in Vartelas [] that
remains good law, as we would in any event, since the BIA’s determination that
IIRIRA overruled Fleuti was reasonable.” Centurion, 860 F.3d at 72 n.1.4 Because
Gomez committed both relevant offenses after IIRIRA went into effect in April
1997, see I.N.S. v. St. Cyr, 533 U.S. 289, 315 (2001); Centurion, 860 F.3d at 77-78, he
is subject to 8 U.S.C. § 1101(a)(13)(C)(v). The BIA correctly concluded that Gomez
was properly treated as seeking admission when he arrived in the United States
in 2015.
4
Every other Circuit to have considered whether IIRIRA overruled the Fleuti
doctrine has also concluded that it did. See, e.g., Othi, 734 F.3d at 266-67; De Vega
v. Gonzales, 503 F.3d 45, 48 (1st Cir. 2007); Camins v. Gonzales, 500 F.3d 872, 879-81
(9th Cir. 2007); Malagon de Fuentes v. Gonzales, 462 F.3d 498, 501-02 (5th Cir. 2006);
Morales-Morales v. Ashcroft, 384 F.3d 418, 424 (7th Cir. 2004); Tineo v. Ashcroft, 350
F.3d 382, 396-97 (3d Cir. 2003).
10
II. The stop-time rule prevented Gomez from accruing seven years of
continuous residency in the United States.
In his second petition for review, Gomez contends that the BIA erred in
denying his motion to reopen. “[A] motion to reopen asks that the proceedings
be reopened for new evidence and a new decision, usually after an evidentiary
hearing.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).
According to the pertinent regulation, a “motion to reopen proceedings shall not
be granted unless it appears to the Board that evidence sought to be offered is
material and was not available and could not have been discovered or presented
at the former hearing.” 8 C.F.R. § 1003.2(c)(1). “[M]otions to reopen are generally
disfavored in light of the strong public interest in the finality of removal orders.”
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (internal quotation
marks and citation omitted). A “failure to establish a prima facie case for the
underlying substantive relief sought [is a] proper ground[] on which the BIA may
deny the motion to reopen.” Alam v. Gonzales, 438 F.3d 184, 187 (2d Cir. 2006); see
Singh v. Mukasey, 536 F.3d 149, 155 (2d Cir. 2008).5
5
We review the denial of a motion to reopen for abuse of discretion, which “may
be found in those circumstances where the Board’s decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements; that is to say,
11
In denying Gomez’s motion to reopen, the BIA concluded that he had not
demonstrated prima facie eligibility for cancellation of removal. The Board
acknowledged that Gomez’s aggravated felony conviction had been vacated, but
concluded that he was still not eligible for cancellation of removal because his
1999 marijuana conviction prevented him from accruing seven years of
continuous residency in the United States. On appeal, Gomez contends that the
BIA abused its discretion by failing to explain its decision and otherwise acting
arbitrarily and capriciously.
The INA provides in relevant part that the “Attorney General may cancel
removal in the case of an alien who is inadmissible or deportable from the United
States if the alien—(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any status, and (3) has not
been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). “[T]he relief of
cancellation of removal is both discretionary and prospective in nature.” In re
Perez, 22 I. & N. Dec. 689, 691 (B.I.A. 1999) (en banc).
where the Board has acted in an arbitrary or capricious manner.” Indradjaja v.
Holder, 737 F.3d 212, 218 (2d Cir. 2013) (internal quotation marks omitted).
“Underlying questions of law are reviewed de novo.” Ri Kai Lin v. Bureau of
Citizenship & Immigr. Servs., 514 F.3d 251, 254 (2d Cir. 2008).
12
At issue in this petition is the second requirement, mandating that, to be
eligible for cancellation of removal, a lawful permanent resident must accrue
seven years of continuous residency in the United States. Regarding that
requirement, the INA further provides, as relevant here, that:
any period of continuous residence . . . in the United
States shall be deemed to end (A) . . . when the alien is
served a notice to appear . . . , or (B) when the alien has
committed an offense referred to in [§] 1182(a)(2) of this
title that renders the alien inadmissible to the United
States under [§] 1182(a)(2) of this title or removable
from the United States under [§] 1227(a)(2) [or (a)(4)] of
this title, whichever is earliest.
8 U.S.C. § 1229b(d)(1). That provision is known as the “stop-time rule” because it
prevents a lawful permanent resident from accruing sufficient continuous
residency to be eligible for cancellation of removal. See Guamanrrigra v. Holder,
670 F.3d 404, 409 (2d Cir. 2012). Because Gomez was deemed inadmissible to the
United States under § 1182(a)(2)(A)(i)(II), we are concerned only with the
requirements for inadmissibility under that section.6 Section 1182(a)(2) is a
6
Gomez also contends that, because the 1999 marijuana conviction did not render
him deportable under 8 U.S.C. § 1227(a)(2)(B)(i), his commission of the offense
could not have triggered the stop-time rule. Whether Gomez was deportable,
however, is irrelevant, since Gomez was rendered inadmissible based on the 1999
offense, which is sufficient to meet the stop-time rule’s requirements.
13
lengthy provision describing many circumstances in which non-citizens are
inadmissible to the United States. As relevant here, the statute provides that:
any alien convicted of, or who admits having
committed, or who admits committing acts which
constitute the essential elements of . . . a violation of (or
a conspiracy or attempt to violate) any law or regulation
of a State . . . relating to a controlled substance (as
defined in [§] 802 of Title 21), is inadmissible.
Id. § 1182(a)(2)(A)(i)(II).
Courts have described the stop-time rule as having two requirements that
must be satisfied in order to halt a lawful permanent resident’s continuous
residency in the United States. See, e.g., Calix v. Lynch, 784 F.3d 1000, 1008 (5th
Cir. 2015). First, the lawful permanent resident must commit a qualifying crime
listed in § 1182(a)(2).7 Gomez’s 1999 marijuana conviction constitutes such an
offense because it was a crime involving a controlled substance. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). Second, that offense must render the lawful permanent
resident inadmissible; that is, a person is only inadmissible due to the commission
7
Time is also stopped when the non-citizen is served a notice to appear, 8 U.S.C.
§ 1229b(d)(1)(A), but that alternative way of triggering the stop-time rule is not at
issue in this appeal because the stop-time rule halts the alien’s accretion of time
in the United States upon the occurrence of whichever alternative occurs first, see
id. § 1229b(d)(1). Gomez was not served with a notice to appear until June 2015,
long after he had lived in the United States for seven years.
14
of a qualifying drug offense if the person is “convicted of, or . . . admits having
committed, or . . . admits committing acts which constitute the essential elements
of” the offense, id. § 1182(a)(2)(A)(i), and is not eligible for other relief from
inadmissibility.8 See Calix, 784 F.3d at 1008. Gomez was convicted of the
marijuana offense after pleading guilty in 1999 and applied for admission to the
United States in 2015.
The parties dispute precisely when Gomez was rendered inadmissible for
purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1)(B). The government
contends that Gomez was rendered inadmissible upon his conviction for
marijuana possession in 1999, see 8 U.S.C. § 1182(a)(2)(A)(i), while Gomez claims
that he was not rendered inadmissible until he applied for admission in 2015.9
8
As explained above, 8 U.S.C. § 1182(a)(2) is a lengthy provision governing
numerous circumstances in which a non-citizen is inadmissible to the United
States. It also includes criteria for various types of relief from inadmissibility. We
do not attempt to catalogue all of those circumstances here, nor should this
discussion be seen as an exhaustive analysis of the possible ways that § 1182(a)(2)
might render a person inadmissible for purposes of the stop-time rule (or for any
other purpose). Instead, we focus only on the provisions that are essential to
resolving Gomez’s appeal.
9
Gomez did not raise before the BIA the precise argument that he advances in
this appeal, although he discussed the issue with the IJ during a September 2015
hearing. In his motion to reopen, he argued generally that he was “prima facie
eligible for [c]ancellation of [r]emoval” after the 2010 conviction was vacated.
15
Although the “question [appears] difficult because the concept of inadmissibility
is generally married to situations in which an alien is actually seeking admission
to the United States,” Calix, 784 F.3d at 1004, precedent addressing the issue of
when a person is rendered inadmissible has sided with the government. In those
cases, other Circuits and the BIA have concluded that a lawful permanent
resident need not apply for admission to be rendered inadmissible under the
stop-time rule. See, e.g., Calix, 784 F.3d at 1008-09; Ardon v. Attorney Gen. of U.S.,
449 F. App’x 116, 118 (3d Cir. 2011); In re Jurado-Delgado, 24 I. & N. Dec. 29, 30-31
(B.I.A. 2006).
Those rulings are consistent with the relevant language of § 1182(a)(2),
which provides that “any alien convicted of, or who admits having committed, or
who admits committing acts which constitute the essential elements of . . . a
violation of (or a conspiracy or attempt to violate) any law or regulation of a State
. . . relating to a controlled substance . . . is inadmissible.” 8 U.S.C.
CAR 22 (Gomez’s motion to reopen). That claim prompted the BIA to consider
the other requirements for cancellation of removal, including the continuous
residency requirement at issue here. Because Gomez raised the issue of his
eligibility for cancellation of removal, and the BIA ruled on the issue of the stop-
time provision that we address in this appeal, we reject the government’s
perfunctory argument that Gomez failed to exhaust the issue before the BIA. See
Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006).
16
§ 1182(a)(2)(A)(i)(II) (emphasis added). In other words, the statute appears to
indicate that a non-citizen becomes inadmissible when he is convicted of or
admits committing a qualifying drug offense. According to the Oxford English
Dictionary (3d ed. 2011), “inadmissible” means not admissible, and “admissible”
means “[c]apable of being or having the right to be admitted to a place.” (Emphasis
added.) The plain language of the statute thus suggests that one who has been
convicted of a controlled substance offense is no longer capable of being
admitted to the United States, should he ever apply; it is not necessary to apply
and be refused admission for one to be, in fact and in law, not capable of being
admitted. The BIA has adopted that interpretation, concluding that an alien is
rendered inadmissible for purposes of § 1229b(d)(1)(B) when the alien
“become[s] inadmissible . . . , i.e., [is] potentially removable if so charged.” In re
Jurado-Delgado, 24 I. & N. Dec. at 31 (internal quotation marks omitted). Since the
stop-time rule incorporates the provisions governing inadmissibility in
§ 1182(a)(2), it appears that Gomez was rendered inadmissible when he was
convicted of the marijuana offense in 1999, although he did not apply for
17
admission until 2015.10
We need not definitively decide when Gomez was rendered inadmissible,
however. Both parties agree that he was in fact rendered inadmissible—either in
1999, when he was convicted of the offense, or in 2015, when he applied for and
was denied admission. In arguing that he was not rendered inadmissible until
2015, Gomez further claims that the date on which he was rendered inadmissible
must be used to calculate his period of residency. That is, in his view, time was
10
At oral argument, Gomez also relied on a case not cited in his brief: Reyes v.
Holder, 714 F.3d 731 (2d Cir. 2013). In Reyes, we interpreted 8 C.F.R.
§ 1240.66(b)(1), a regulatory provision promulgated pursuant to the Nicaraguan
Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111
Stat. 2193. Reyes, 714 F.3d at 732. Although the title of that regulation refers to
“cancellation of removal,” its text differs substantially from the text of the stop-
time rule, 8 U.S.C. § 1229b(d)(1). For example, 8 C.F.R. § 1240.66(b)(1) provides
that a person may be eligible for “special rule cancellation of removal” if the
person is “not inadmissible under [§ 1182(a)(2)] . . . or deportable.” In contrast,
the stop-time rule provides that a person stops accruing continuous residency in
the United States when he “has committed an offense . . . that renders [him]
inadmissible to the United States . . . or removable from the United States.” 8
U.S.C. § 1229b(d)(1)(B). In Reyes, we held that a non-citizen could not be deemed
“deportable” under that regulation if the person had not been admitted to the
United States. 714 F.3d at 732-33. Gomez contends that we should extend Reyes
and conclude here that a non-citizen could not be rendered inadmissible until he
sought an admission to the United States. Whatever limited relevance Reyes
might have in discerning when a lawful permanent resident is rendered
inadmissible under the stop-time rule—and we do not suggest that it has
any—we need not decide that issue because there is no dispute that the 1999
marijuana conviction did ultimately render Gomez inadmissible.
18
not stopped until 2015. Although we have not squarely addressed Gomez’s
precise argument, our precedent requires us to reject it.
We have repeatedly held “that the stop-time rule is triggered on the date
an alien commits a predicate offense,” not on the date of his subsequent
conviction. Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011). We have admitted no
ambiguity on this point, explaining that “it is the date of the commission of the
offense—not the date of the subsequent conviction—that matters for purposes of
computing an alien’s period of continuous residence.” Martinez v. I.N.S., 523 F.3d
365, 369 (2d Cir. 2008). That reading “best comports with a natural reading of the
statute[,] . . . [which] strongly suggests that it is the commission of the acts that
constitute the offense, not conviction for the offense, that controls.” Baraket, 632
F.3d at 59-60 (citing In re Perez, 22 I. & N. Dec. at 693); see Centurion, 860 F.3d at 75
(collecting cases); see also Santos-Reyes v. Attorney Gen. of U.S., 660 F.3d 196, 199
(3d Cir. 2011) (“All points of reference lead to the conclusion that the phrase ‘has
committed’ in [§] 1229b(d)(1) means the stop-time rule is triggered . . . by an
alien’s criminal conduct occurring on a particular date before the end of the
seventh year of continuous residence.”). We have never held that the date on
which a lawful permanent resident is rendered inadmissible is relevant for
19
calculating his continued residency in the United States. Just as we said in
Baraket, 632 F.3d at 59-60, the language of the statute strongly supports our
reading: § 1229b(d)(1) provides that an alien’s “period of continuous residence
. . . shall be deemed to end . . . when the alien has committed an offense referred to
in [§] 1182(a)(2).” (Emphasis added.) To be sure, the offense must render the non-
citizen inadmissible, but the date on which he is rendered inadmissible is of no
consequence to determining the date as of which his period of continuous
residence is deemed to have ended.
The BIA (sitting en banc) has reached the same conclusion about the
relationship between the date of the commission of an offense and the separate
requirement that the offense “renders the alien inadmissible,” 8 U.S.C.
§ 1229b(d)(1)(B), albeit in a case principally concerning the retroactivity of the
stop-time rule. There, the BIA explained that the “‘renders’ clause does not
impose a separate temporal requirement. Rather, it 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.” In re Perez,
20
22 I. & N. Dec. at 693.11 In other words, no matter when a person is “rendered
inadmissible” under § 1229b(d)(1)(B), the date of his commission of a qualifying
offense “is the critical point in time when calculating the statutorily required
period” of residency, In re Perez, 22 I. & N. Dec. at 693. The BIA emphasized that
the “statute does not identify the date that the final step for inadmissibility or
removability occurs as the date that the further accrual of time terminates.” Id.
“To the contrary, it clearly defines the terminating point” as the time when the
person committed the offense. Id.12
11
We have declined to defer to the portion of the BIA’s opinion in Perez
discussing retroactivity because the issue of retroactivity “does not concern the
sort of statutory gap that Congress has designated the BIA to fill, nor a matter in
which the BIA has particular expertise.” Martinez, 523 F.3d at 372-73. We have
never disapproved of its general discussion of the triggering date for the stop-
time rule, however. Indeed, we cited that portion of Perez approvingly in Baraket,
632 F.3d at 59-60. That aspect of the BIA’s discussion relates to the interpretation
of the INA, a subject that is well within the expertise of the BIA to which we
normally defer.
12
We note that the dissenters in Perez sought to read the relevant date stopping
time as the date that the “alien is rendered inadmissible or removable,” In re
Perez, 22 I. & N. Dec. at 699, which is the same argument that Gomez advances
here. In rejecting that view, the BIA majority noted that using the time at which
the non-citizen was “rendered inadmissible” as the “cutoff date . . . would leave
no role for the ‘has committed’ language” in the statute, and would therefore be
contrary to the statutory text. Id.; see id. at 702-03 (Guendelsberger, Board
Member, dissenting).
21
The BIA’s reasoning is consistent with our cases holding that the date of
the commission of the qualifying offense controls the calculation of a person’s
continuous residency in the United States. See, e.g., Baraket, 632 F.3d at 59-60. In
other words, the stop-time “rule is unconcerned with the particular events that
give rise to the alien’s removal; indeed, it operates the same way no matter what
brought about the removal.” Jaghoori v. Holder, 772 F.3d 764, 773 (4th Cir. 2014);
see In re Jurado-Delgado, 24 I. & N. Dec. at 30-31 (holding that a lawful permanent
resident was rendered inadmissible even though he was not charged as
inadmissible based on the crime that precluded him from accruing seven years of
continuous residence). Similarly, the Fifth Circuit acknowledged that the date of
the commission of an offense controls the computation of residency, holding that
an alien’s “continuous residence ended . . . when he committed an offense that
rendered him inadmissible”; in other words, “[h]is accrual of continuous
residence was halted as of the date he committed [the] offense.” Calix, 784 F.3d at
1011, 1012.13
13
At issue in Calix was whether the petitioner’s conviction of marijuana
possession rendered him inadmissible to the United States even though he did
not apply for readmission. Calix, 784 F.3d at 1002, 1004. Calix was deportable
based on a cocaine offense that he committed after he had been in the United
States for the required seven years, id. at 1005 n.3; thus, his eligibility for
22
The plain language of the statute and the cases interpreting it therefore
demonstrate that, even assuming that the “renders . . . inadmissible” clause
contains a separate requirement that must be satisfied in order to halt a lawful
permanent resident’s continuous residency in the United States, and even if that
requirement is not satisfied (as Gomez contends) until the alien applies for
admission, once inadmissibility is determined, it is the date of the commission of
the offense that controls our calculation of the period of residency. “The language
chosen by Congress [thus] directs that an alien cease accruing the time required
to establish eligibility for the relief of cancellation of removal at the point where
he or she abuses the hospitality of this country by committing one of the
designated offenses, so long as the offense subsequently renders the alien
inadmissible or removable.” In re Perez, 22 I. & N. Dec. at 700; see Reid v. Gonzales,
478 F.3d 510, 512 (2d Cir. 2007). We agree with the BIA that it “would strain our
reading of [§ 1229b(d)(1)] to interpret the statute as permitting any date to be
cancellation of removal turned on the consequences of his earlier marijuana
conviction and whether that conviction rendered him inadmissible for purposes
of the stop-time rule. The court concluded that it did, because Calix could have
been charged as inadmissible based on the marijuana offense had he sought
admission to the United States at that time, and therefore the commission of the
offense prevented him from accruing seven years of continued residency. Id. at
1012.
23
used for calculating the period of continuous residence . . . other than the date the
offense was committed.” In re Perez, 22 I. & N. Dec. at 693; see Baraket, 632 F.3d at
57, 59.
In short, when a non-citizen is rendered inadmissible—by a conviction,
admission of the criminal conduct, or through some other means—the stop-time
rule may make him ineligible for cancellation of removal, if, as of the date of his
commission of the underlying offense, he had not yet resided in the United States
continuously for seven years. To state it another way: as long as a qualifying
offense later does render the non-citizen inadmissible under 8 U.S.C. § 1182(a)(2),
the date of the commission of the offense governs the computation of a lawful
permanent resident’s continuous residency in the United States. Accordingly,
even if Gomez is correct that he was not rendered inadmissible until 2015—a
position that we find dubious—his commission of the 1999 offense would still be
the operative date for purposes of calculating his period of residency in the
United States. We reject Gomez’s attempt to transform the “‘that renders’ clause
. . . [into] a separate temporal requirement,” because such a reading “would
result in a conflict with the temporal requirement already in the plain language of
the statute, namely, the provision that time is stopped once an alien ‘has
24
committed’ a relevant offense.” Baraket, 632 F.3d at 60 (internal quotation marks
omitted).
The BIA therefore did not abuse its discretion in denying Gomez’s motion
to reopen because he did not demonstrate prima facie eligibility for cancellation of
removal. Gomez entered the United States as a lawful permanent resident in 1997
and was convicted of marijuana possession in 1999. Because his period of
continuous residence is deemed to have ended as of the date of his commission
of that offense, he thus accrued fewer than seven years of continuous residency
in the United States. Gomez’s attempt to characterize the BIA’s denial of his
motion to reopen as impermissibly “summary and conclusory,” Pet. Br. 22, is
unavailing. The BIA considered whether the 1999 marijuana offense triggered the
stop-time rule and provided adequate, legally correct reasons for concluding that
it did.
CONCLUSION
For the foregoing reasons, the consolidated petitions for review are
DENIED. Since we have completed our review, the pending motion for stay of
removal is DENIED as moot.
25