Rony Paz Calix v. Loretta Lynch , 784 F.3d 1000 ( 2015 )

Case: 13-60764 Document: 00513022982 Page: 1 Date Filed: 04/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60764
United States Court of Appeals
Fifth Circuit
FILED
April 28, 2015
RONY ALEXANDER PAZ CALIX,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
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.
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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 Immigration and Nationality Act (“INA”) as
an alien convicted of a controlled substance violation after admission into the
United States. Paz Calix conceded removability and requested cancellation of
removal under 8 U.S.C. § 1229b(a). The government moved to pretermit Paz
Calix’s application. The immigration judge (“IJ”) granted the government’s
motion in June 2011, concluding, pursuant to the “stop-time rule” in Section
1229b(d)(1), that Paz Calix’s 2001 marijuana offense halted his accrual of
continuous residence in the United States short of the seven years required for
cancellation of removal. In September 2011, the IJ ordered Paz Calix’s removal
to Honduras.
Paz Calix timely appealed to the Board of Immigration Appeals (“BIA”).
In his brief, Paz Calix explained that he had been a lawful permanent resident
since December 1997 and was not seeking admission to the United States.
Therefore, he argued that the 2001 offense that would render him inadmissible
under the stop-time rule had no effect on his eligibility for cancellation of
removal. In September 2013, the BIA affirmed the IJ’s order of removal.
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.
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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. 8 U.S.C. § 1252(d)(1). Failure to
exhaust administrative remedies is a jurisdictional bar. Claudio v. Holder, 601
F.3d 316, 318 (5th Cir. 2010).
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.
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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
. . . .” FED. R. APP. P. 28(a)(8)(A); see also L & A Contracting, 17 F.3d at 113 &
n.27. We conclude that no violation of this rule occurred. Paz Calix made his
argument clearly, and cited one of the few cases relevant to the question at
issue. A thin argument perhaps, but when the authority itself is thin, that
may be sufficient. The briefing here suffices.
II. Paz Calix’s Eligibility for Cancellation of Removal
Courts generally cannot review final orders of removal, including the
exercise of discretion to grant or deny relief under Section 1229b. See 8 U.S.C.
§ 1252(a)(2)(B)(i). Courts may, however, consider constitutional claims or
questions of law raised in a petition for review. See § 1252(a)(2)(D).
Accordingly, this court reviews de novo whether, as a matter of law, an offense
invokes the stop-time rule under Section 1229b(d)(1). Miresles-Zuniga v.
Holder, 743 F.3d 110, 112 (5th Cir. 2014).
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 . . . .” 8 U.S.C. § 1229b(a)(2). This requirement is qualified by the
stop-time rule, which ends the accrual of continuous residence: “when the alien
[commits] an offense referred to in section 1182(a)(2) of this title that renders
the alien [(a)] inadmissible to the United States under section 1182(a)(2) of this
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title or [(b)] removable 1 from the United States under section 1227(a)(2) or
1227(a)(4) of this title . . . .” § 1229b(d)(1)(B).
Paz Calix concedes that he committed an offense referred to under
Section 1182(a)(2). The question is whether that offense “renders” him
“inadmissible to the United States.” If it does, then Paz Calix’s continuous
residence in the United States will span only from February 1997, when he
entered the United States, until no later than January 2001, when he was
arrested for possession of marijuana and was later convicted. As a result, he
will fall short of the seven-year requirement in Section 1229b(a)(2) and will not
be eligible for cancellation of removal. The question is difficult because the
concept of inadmissibility is generally married to situations in which an alien
is actually seeking admission to the United States. The government agrees
that Paz Calix is not seeking admission. 2 It argues, though, that
inadmissibility for purposes of the stop-time rule is distinct from
inadmissibility in other contexts. That is, inadmissibility under the stop-time
rule is merely a status conferred upon aliens by virtue of their having
committed a Section 1182(a)(2) offense. The government asserts that if an
alien seeking cancellation of removal has committed an offense that would
make him or her inadmissible if actually seeking admission, that offense
suffices to make the alien ineligible for cancellation of removal.
1 Section 1227(a)(2) and (a)(4) use the term “deportable,” not “removable.”
2 The definition section of the INA states that “[a]n alien lawfully admitted for
permanent residence in the United States shall not be regarded as seeking an admission into
the United States for purposes of the immigration laws . . . .” 8 U.S.C. § 1101(a)(13)(C). An
exception to this rule arises when an alien “has committed an offense identified in section
1182(a)(2) of this title . . . .” § 1101(a)(13)(C)(v). This exception, however, applies only to
lawful permanent-resident aliens who leave the country after committing a Section
1182(a)(2) offense and subsequently reenter or seek reentry without being readmitted. See
Vartelas v. Holder, 132 S. Ct. 1479, 1485, 1488 (2012); Cabral v. Holder, 632 F.3d 886, 892
(5th Cir. 2011). The government does not claim that Paz Calix left the country.
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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 for this court. 3
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 (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 (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
3 This court disposed of a related question by concluding that a lawful permanent-
resident alien was removable under the stop-time rule; we declined to address whether the
alien could be regarded as inadmissible under the rule. See Miresles-Zuniga, 743 F.3d at 114
n.7. Here, Paz Calix had already accrued seven years of continuous residence by the time of
his 2007 cocaine offense, which rendered him removable. In contrast, his 2001 marijuana
offense rendered him inadmissible, but not removable.
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determine whether “all but one of the meanings is ordinarily eliminated by
context.” Deal v. United States, 508 U.S. 129, 132-33 (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 (2009); see also U.S. Home Concrete &
Supply, LLC, 132 S. Ct. 1836, 1843 (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 Section 1229b(d)(1)(B) is “an offense . . . that
renders the alien inadmissible . . . or removable . . . .” The word “renders” is
not defined in the INA. The context in which the word is used does not offer
clarity. 4 The ordinary meaning of the word is “to cause to be or become.”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1054 (11th ed. 2003). This
definition brings us no closer to answering the question at issue. It instead
injects the equally vague question of whether aliens may be or become
inadmissible to the United States if they are not seeking admission.
4 Of potential relevance is the stop-time rule’s use of the relative pronoun “that”
instead of “which” to modify the clause “renders the alien inadmissible.” This could indicate
that the clause qualifies, rather than describes, the preceding clause “offense referred to in
section 1182(a)(2).” See THEODORE M. BERNSTEIN, THE CAREFUL WRITER 444 (1965). If that
is the case, offenses that “render[] the alien inadmissible” must be a subclass of, rather than
equivalent to, “offense[s] referred to in section 1182(a)(2).” We do not rely on the distinction
between restrictive and non-restrictive relative pronouns, however, because it is not
sufficiently recognized as a grammatical rule. See, e.g., ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW 142-43 (2012).
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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 (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 Section 1182(a)(2)
categorically rendered an alien inadmissible for purposes of the stop-time rule,
then there would be no need to consider whether, in the alternative, the offense
rendered the alien removable under Section 1227(a)(2) or (a)(4).
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 Section 1227(a)(4) as “surplusage” and suggesting Congress
may have intended to reference Section 1227(a)(3) instead. See In re Campos-
Torres, 22 I. & N. Dec. 1289, 1294-95 (BIA 2000) (en banc). 5 In that opinion,
a majority of the en banc BIA also held that the stop-time rule’s clear statement
that the relevant offenses must be referred to in Section 1182(a)(2), even those
that render an alien removable under Section 1227(a)(2) or (a)(4), could not be
ignored as a drafting error. Id. at 1292-93. These oddities suggest that the
interlocking concepts of inadmissibility, removability, and eligibility for relief
from removal can be difficult to harmonize for both Congress and courts.
5 For further insights into the difficulties of interpreting the stop-time rule and other
pertinent provisions of the 1996 amendments to the INA, see Elwin Griffith, Admission and
Cancellation of Removal under the Immigration and Nationality Act, 2005 MICH. ST. L. REV.
979, 1041-52 (2005).
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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 Section 1182(a)(2). If the alien has
committed an offense listed there, does inadmissibility automatically result?
It does not. Immigration authorities may suspect that an alien has committed
an offense identified in Section 1182(a)(2), but such suspicions are not
sufficient to make the alien inadmissible. Removal proceedings do not allow
for a trial within a trial where, after the presentation of evidence, the
immigration judge decides whether one of the relevant offenses has been
committed. Instead, an offense under this subsection must be shown either by
the alien’s admitting the offense or by a conviction. See § 1182(a)(2)(A)(i). One
reading, then, of the “renders the alien inadmissible” language is that the alien
is not rendered inadmissible unless he has been convicted of or admitted
committing the offense. Such a reading is a possible, but not the only,
interpretation of what Congress meant. The language is ambiguous.
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
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circumstances not applicable here. See Lara-Terrazas, 2006 WL 3922203, at
*1 (citing 8 U.S.C. § 1101(a)(13)(C)). That decision also observed that Section
1182(a)(2) applies to “aliens who are seeking admission into the United
States.” Id. It therefore concluded that the commission of an offense under
Section 1182(a)(2) would halt continuous presence or residence only for aliens
seeking admission. See id.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
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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.Second, the BIA held that an alien was not “rendered” deportable until
convicted of the offense (he had not admitted to its commission):
“[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.
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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 Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) of 1996. See
Heaven v. Gonzales, 473 F.3d 167, 171-72 (5th Cir. 2006).
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,
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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. 6
The Third Circuit upheld this interpretation. See Jurado-Delgado v. U.S. Att’y
Gen., 498 F. App’x 107 (3d Cir. 2009).
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 F. App’x 116, 118 (3d Cir. 2011). As the
6 The BIA noted that an alien does not even need to be “convicted of an offense under
section 212(a)(2) of the Act in order for the ‘stop-time’ rule to apply. For example, the rule
may be triggered by an alien's admission of acts constituting the essential elements of such
an offense under section 212(a)(2)(A)(i).” Jurado-Delgado, 24 I & N. Dec. at 31. Just as no
conviction was needed, “there is no reason to believe that Congress intended that an alien
must have been charged with such an offense as a ground of inadmissibility or removability
in order for the provision to stop the alien's accrual of continuous residence.” Id.
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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) . . . .” 8 U.S.C.
§ 1229b(b)(1)(C). The cross-referenced statute, among other offenses, makes
any alien who “is convicted of a crime involving moral turpitude committed
within five years . . . after the date of admission,” subject to deportation. §
1227(a)(2)(A)(i). Nino argued that because she had not committed the
disqualifying offense within five years of admission, she was eligible for
cancellation of removal. Nino, 690 F.3d at 697. We disagreed. Cancellation of
removal under Section 1229b(b)(1)(C) may be available if the alien “has not
been convicted of an offense under” the cross-referenced sections. We
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concluded that Section 1227(a)(2), which had the five-year requirement, did
“not provide the authority for the conviction. It provides the authority for the
deportation. An alien will never be convicted under any part of Section 1227.”
Id. We found no ambiguity in the statute and held that the five-year limitation
was inapplicable:
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.
Id. at 697-98.
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. 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
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No. 13-60764
provisions[.]” Matter of Cortez, 25 I. & N. Dec. 301, 308 (BIA 2010). 7 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 analyzed here the effect of the word “renders.” Not only must the alien
have committed an offense under the cross-referenced statute, but the
commission must have been followed by something else that made the alien
inadmissible or removable. At least that much of the immigration-related
provisions of the referenced statute was adopted. Is more than that
incorporated in the stop-time rule?
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 Section 1227(a)(2)(B)(i).
He sought cancellation of removal, which among other matters requires that
7 The Fourth and Seventh Circuits resolved the same issues by deferring to the BIA’s
interpretation of Section 1229b(b)(1)(C) under Chevron Step 2. See Hernandez v. Holder, ---
F.3d ---, 2015 WL 1638917, at *5 (4th Cir. 2015); Coyomani-Cielo v. Holder, 758 F.3d 908,
910-11 (7th Cir. 2014).
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he have resided continuously in this country for seven years after being
admitted in any status. § 1229b(a)(2). Continuous residence stops under the
provision that we have been discussing. § 1229b(d)(1)(B). The stop-time rule
by its own terms applies only when an alien commits an offense under Section
1182(a)(2), which are the offenses that make an alien inadmissible. Paz Calix’s
2001 offense for possession of marijuana is one of those offenses.
Time also is stopped if a Section 1182(a)(2) offense makes an alien
removable under Section 1227(a)(2). Id. That language is confusing because
each subpart of Section 1182(a)(2) closes by saying an alien who committed
that particular offense is inadmissible. Removability seems a redundancy. As
the BIA explained, this and other uncertainties could have been removed by
fairly simple rewording of the stop-time rule, but Congress chose this wording.
In re Campos-Torres, 22 I. & N. Dec. at 1293. Logically at least, section
1227(a)(2) could at times be important because there are exceptions in Section
1182(a)(2). For example, a crime involving moral turpitude will not bar
admission if, among other conditions, it was committed before the offender was
18 years old. § 1182(a)(2)(A)(ii). If a Section 1182(a)(2) exception is not also
an exception for the same offense under Section 1227(a)(2), an alien admissible
despite the offense might still be removable due to the offense.
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.
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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 § 1101(a)(13)(C). Paz Calix’s continuous residence
ended in 2001 when he committed an offense that rendered him inadmissible.
Using the language of Jurado-Delgado, he became potentially removable if
properly charged. See 24 I. & N. Dec. at 31.
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. An interpretation consistent
with Nino incorporates only the provisions that explain what further must
happen before there is an immigration-related consequence to the commission
of an offense. We observed above that the BIA in Jurado-Delgado reached this
result without explicitly analyzing the issue. We do not change course and
now give deference to something at best only implied in that decision, but our
conclusion is consistent with that BIA decision.
Paz Calix’s offense of possession of marijuana is referred to in Section
1182(a)(2). Once he was convicted of the offense, he was rendered inadmissible
to the United States. His accrual of continuous residence was halted as of the
date he committed that offense. Because he has not resided in the United
States continuously for seven years, he is ineligible for cancellation of removal.
Petition DENIED.
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