Carlos Coyomani-Cielo v. Eric Holder, Jr. , 758 F.3d 908 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2955
CARLOS COYOMANI-CIELO,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of a Final Order of
the Board of Immigration Appeals
____________________
ARGUED MAY 22, 2014 — DECIDED JULY 14, 2014
____________________
Before POSNER, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge. Carlos Coyomani entered the Unit-
ed States without inspection in 1997 and concedes that he is
removable. 1 The question here is whether he is eligible for
cancellation of removal. The Board of Immigration Appeals
1In his brief, the petitioner refers to himself as Carlos Coyomani, not
Carlos Coyomani-Cielo. We follow his practice in our opinion.
2 No. 13-2955
(BIA or Board) found him ineligible for that relief. Coyomani
now petitions for review, arguing that the Board misinter-
preted the relevant provision of the Immigration and Na-
tionality Act (INA), § 240A(b)(1)(C). We find that statutory
provision ambiguous but conclude that the Board’s interpre-
tation is reasonable and entitled to deference under Chevron.
We therefore deny Coyomani’s petition.
I. Background
Before we describe Coyomani’s path through the immi-
gration courts, we will briefly summarize the relevant statu-
tory scheme and a few background concepts. “Federal im-
migration law governs both the exclusion of aliens from ad-
mission to this country and the deportation of aliens previ-
ously admitted.” Judulang v. Holder, 132 S. Ct. 476, 479 (2011).
A “removable” individual is one whom the immigration au-
thorities may lawfully expel from the United States; both
“deportable” and “inadmissible” individuals are “remova-
ble.” INA § 240(e)(2); 8 U.S.C. § 1229a(a)(2); Zamora-Mallari v.
Mukasey, 514 F.3d 679, 687 n.2 (7th Cir. 2008). A “deportable”
individual is a non-citizen who (in many cases) was lawfully
admitted into the United States, but who later became re-
movable for any of a number of reasons specified in INA
§ 237(a) (for instance, by committing a specified offense). See
generally AUSTIN T. FRAGOMEN, JR. & STEVEN C. BELL,
IMMIGRATION FUNDAMENTALS 1-28 to -30, 7-11 (4th ed. 2013).
An “inadmissible” individual is a non-citizen who (in many
cases) was not formally admitted into the country, and who
is removable for any of several reasons specified in INA
§ 212(a) (for example, by committing a crime involving mor-
al turpitude). See id. See generally Xi v. INS, 298 F.3d 832, 838
(9th Cir. 2002) (discussing these terms and certain of their
No. 13-2955 3
differences). However, a removable individual (whether in-
admissible or deportable) is sometimes eligible to seek “can-
cellation of removal,” a form of discretionary relief that the
Attorney General may grant. See INA § 240A; 8 U.S.C.
§ 1229b. To be eligible for cancellation of removal, a non-
permanent resident alien like Coyomani must satisfy four
conditions. See INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).
Only one of those conditions is relevant in this case: the
requirement that Coyomani “has not been convicted of an
offense under [INA] section 212(a)(2), 237(a)(2), or
237(a)(3).” 2 INA § 240A(b)(1)(C); 8 U.S.C. § 1229b(b)(1)(C).
Section 237(a)(3)—relating to the fraudulent obtainment or
misuse of a visa or other entry document—is not relevant in
this case, but the other two cross-referenced sections are. As
relevant here, INA § 212(a)(2) states that an alien is inadmis-
sible if he commits a crime involving moral turpitude (a
“CIMT,” for short) and the maximum sentence that can be
imposed exceeds one year; and § 237(a)(2) provides that an
alien is deportable if he commits any of a number of crimes,
including “an aggravated felony at any time after admis-
sion.”
We now turn to the specifics of Coyomani’s case.
Coyomani, a native and citizen of Mexico, entered the Unit-
ed States without inspection in 1997. In 2000, he was con-
victed in Illinois state court of domestic battery and of resist-
ing a peace officer. In 2009, the Department of Homeland
2The other three elements are presence in the United States for a contin-
uous period of 10 years, good moral character, and a showing that re-
moval would result in exceptional hardship to the alien’s U.S. citizen
spouse, parent, or child. See INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).
4 No. 13-2955
Security placed Coyomani in removal proceedings, charging
him with inadmissibility as an alien present in the United
States without being admitted or paroled, see INA
§ 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien
who had been convicted of a CIMT, see INA
§ 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Later in 2009, Coyomani appeared before an immigration
judge (IJ), with counsel. He denied one ground of removabil-
ity—the charge that he had committed a CIMT—but he con-
ceded the other—that he was removable because he, as a
non-citizen, was present in the United States without being
admitted or paroled. Nonetheless, he sought cancellation of
removal as a non-lawful permanent resident. The IJ conclud-
ed that Coyomani was both removable and ineligible for
cancellation of removal.
The IJ found that Coyomani was removable because he
was present without being admitted or paroled. However,
the IJ did not sustain the other ground of removability: a
CIMT conviction under INA § 212(a)(2). Although Coyoma-
ni was convicted of domestic battery, which qualifies as a
CIMT, the IJ found that Coyomani “probably” satisfied the
statutory exception due to the brevity of his sentence. See
INA § 212(a)(2)(A)(ii)(II); 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The
IJ further determined that Coyomani’s other offense, resist-
ing a peace officer, did not qualify as a CIMT.
Next, the IJ found that Coyomani was ineligible for can-
cellation of removal because he had been convicted of “an
offense under” INA § 237(a)(2)—specifically, “an aggravated
felony,” id. § 237(a)(2)(A)(iii). Essentially, the same crime—
state domestic battery—had different implications for differ-
ent sections of the INA, because § 212(a)(2) has a pertinent
No. 13-2955 5
exception whereas § 237(a)(2) does not. The IJ noted that the
Seventh Circuit had already considered the statute under
which Coyomani was convicted, 720 ILCS 5/12-3.2(a)(1). See
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. 2008). In that
case, we held that domestic violence, as defined by the Illi-
nois statute, was a crime of violence because “it has as an el-
ement the use of physical force … . Therefore, we concur
with the IJ that LaGuerre’s domestic battery conviction is an
aggravated felony that subjects LaGuerre to deportation.” Id.at 1039 (citing 8 U.S.C. § 1101(a)(43)(F)). In sum, because
Coyomani had been convicted of a crime “under” INA
§ 237(a)(2), the IJ found him ineligible for cancellation of re-
moval.
Coyomani had argued before the IJ (as he does on ap-
peal) that § 237(a)(2) does not apply to him, because
§ 237(a)(2) provides that an alien is deportable if he commits
an aggravated felony after admission, but Coyomani was nev-
er admitted. In Coyomani’s view, he is subject only to § 212,
under which he might be eligible for cancellation of removal.
The IJ found “a certain appeal to that argument,” but held
that it was foreclosed by the BIA’s decision in Matter of Cor-
tez, 25 I. & N. Dec. 301 (B.I.A. 2010). In that case, the Board
explained that the provision that deals with eligibility for
cancellation of removal cross-references three other INA sec-
tions. The Board held that only part of the cross-referenced
provisions matters when determining eligibility for cancella-
tion of removal. Specifically, the Board would look only at
the elements of the crime and the sentence potentially im-
posed; it would not consider the portions of the cross-
referenced provisions that refer to an alien’s immigration
status—words like “after admission” and “deportable.” Id. at
308. The IJ deferred to the Board’s interpretation, “since the
6 No. 13-2955
Seventh Circuit has not addressed this issue.” Therefore, the
IJ dismissed Coyomani’s request for cancellation of removal.
Coyomani appealed to the Board, which agreed with the
IJ’s analysis and conclusion. Relying on Cortez and Matter of
Almanza, 24 I. & N. Dec. 771 (B.I.A. 2009), the Board held that
an alien convicted of an offense described under INA
§ 237(a)(2) is ineligible for cancellation of removal under
INA § 240A(b)(1)(C), irrespective of whether the alien is
charged with removal under INA § 212 (as an inadmissible
alien) or § 237 (as a deportable alien). The Board rejected
Coyomani’s argument that the Second Circuit’s recent deci-
sion in Reyes v. Holder, 714 F.3d 731 (2d Cir. 2013), required a
different result. (We address that decision below.) Coyomani
petitioned our court for review of the Board’s decision.
II. Discussion
Whether an alien is statutorily eligible for cancellation of
removal is a question of law that we have jurisdiction to re-
view. See 8 U.S.C. § 1252(a)(2)(D); Iddir v. INS, 301 F.3d 492,
496–98 (7th Cir. 2002). Where, as here, the Board adopts the
IJ’s opinion and also supplements it with the Board’s own
reasoning, we review both decisions. Abraham v. Holder, 647
F.3d 626, 632 (7th Cir. 2011). We review questions of statuto-
ry interpretation de novo, though we often apply the famil-
iar Chevron framework. INS v. Aguirre-Aguirre, 526 U.S. 415,
424 (1999); Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). This framework applies to the
Board’s interpretations of the INA so long as (1) the Board’s
reasoning is thorough, see Mata-Guerrero v. Holder, 627 F.3d
256, 259 (7th Cir. 2010); and (2) the Board’s decision is issued
by a multi-member panel, or relies on a Board opinion that
was issued by a multi-member panel, Lagunas-Salgado v.
No. 13-2955 7
Holder, 584 F.3d 707, 711 (7th Cir. 2009). The Board’s opinion
in this case meets these requirements. At Chevron’s first step,
we determine—using ordinary principles of statutory inter-
pretation—whether Congress has directly spoken to the pre-
cise question at issue. Chevron, 467 U.S. at 842–43 & n.9. If
Congress has done so, our inquiry ends there. Id. at 842–43.
If not, then Congress has left the “administrative agency
with discretion to resolve a statutory ambiguity,” Ali v.
Mukasey, 521 F.3d 737, 739 (7th Cir. 2008), so at step two, we
require only that the agency’s interpretation be reasonable.
A. Chevron step one
We first consider whether Congress has directly an-
swered the specific question in this case: whether INA
§ 240A(b)(1)(C)—which cross-references three other sections
of the INA—clearly meant to cross-reference only the
crime/punishment language of those three provisions. Recall
that the Attorney General may cancel removal of an inad-
missible or deportable alien if, among other things, “the al-
ien … has not been convicted of an offense under [INA] sec-
tion 212(a)(2) [or] 237(a)(2).” INA § 240A(b)(1)(C); 8 U.S.C.
§ 1229b(b)(1)(C). The pertinent cross-referenced provision in
this case is INA § 237(a)(2), the relevant part of which states:
“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.” INA § 237(a)(2)(A)(iii); 8
U.S.C. § 1227(a)(2)(A)(iii). Reading these two provisions to-
gether, the statute effectively says that the Attorney General
may cancel removal for an inadmissible or deportable alien
who has not been convicted of an offense under another
provision of the statute that speaks explicitly, and only, in
terms of deportable aliens. It is strange and confusing to use
cross-references in this way, as one provision refers to two
8 No. 13-2955
classes of aliens but then cross-references a different provi-
sion that specifically refers only to one such class, making
the precise interaction of the two provisions unclear.
One way to demonstrate the ambiguity in this case is to
consider the parties’ differing interpretations. The govern-
ment says that INA § 240A(b)(1)(C) does not cross-reference
all of §§ 212(a)(2), 237(a)(2), and 237(a)(3), but rather, refers
only to the crime and punishment in those sections. This read-
ing omits § 237(a)(2)’s reference to the immigration status of
the particular individual. Coyomani, on the other hand,
reads § 240A(b)(1)(C) as saying that inadmissible aliens are
ineligible for cancellation of removal only if they commit an
offense under § 212(a)(2), while deportable aliens are ineligi-
ble only if they commit an offense under § 237(a)(2) or (a)(3).
Under his interpretation, he might be eligible for cancella-
tion of removal.
Both sides’ interpretations help bring sense to a provi-
sion, § 240A(b)(1)(C), that refers to inadmissible and deport-
able individuals, but then cross-references provisions that
(on their own) apply only to inadmissible or deportable in-
dividuals. However, neither interpretation is obviously re-
quired by the statute and both interpretations arguably read
words out of the statute. 3 The government probably has the
3 The Board’s interpretation of INA § 240A(b)(1)(C) gives effect only to
part of § 237(a)(2)—the words, “Any alien who is convicted of an aggra-
vated felony.” This interpretation does not give effect to the references to
“admission” and “deportable.” Similarly, Coyomani’s reading of INA
§ 240A(b)(1)(C) twists the language so that an inadmissible alien, for in-
stance, is ineligible for cancellation only if he is convicted of an offense
under § 212(a)(2), even though § 240A(b)(1)(C) cross-references two oth-
er provisions as well.
No. 13-2955 9
better interpretation and probably reads less out of the stat-
ute than does Coyomani. But there is a distinction between
“clear” meaning and a “better” reading. Cf. Note, “How Clear
is Clear” in Chevron’s Step One?, 118 HARV. L. REV. 1687
(2005) (exploring this distinction).
In this case, there was a much simpler, clearer, and more
direct way for Congress to convey the meaning that the
Board gives the statutory phrase: simply list the crimes (e.g.,
“aggravated battery”) rather than cross-referencing provi-
sions that list crimes committed by individuals with a par-
ticular immigration status. In other words, Congress could
simply have said, “the Attorney General may cancel removal
for an inadmissible or deportable alien who has not been
convicted of an aggravated felony, a CIMT, etc.” Moreover,
when Congress wanted to focus on the elements of a crime
and the duration of the punishment—which is the gloss the
Board gives § 240A(b)(1)(C)—it appears that Congress knew
how to do so clearly. Indeed, that type of language appears
in the INA in a section that § 240A(b)(1)(C) itself cross-
references. See INA § 212(a)(2)(A)(i) (“[A]ny alien convicted
of, or who admits having committed, or who admits com-
mitting acts which constitute the essential elements of … a
crime involving moral turpitude….”); id. § 212(a)(2)(A)(ii)(II)
(duration of possible and actual sentence); 8 U.S.C.
§ 1182(a)(2)(A)(i)–(ii). See generally INS v. St. Cyr, 533 U.S.
289, 318–19 (2001) (interpreting one section of a statute in
light of other, clearer sections in the same statute). In light of
the foregoing analysis—which suggests some confusion, po-
tential contradictions, and a much clearer way to make the
point that Congress may have been trying to make—we
cannot say that INA § 240A(b)(1)(C) is “clear” at Chevron’s
first step.
10 No. 13-2955
For his part, Coyomani argues that in light of a recent
Second Circuit decision, it is clear that his interpretation is
correct. We disagree. In Reyes v. Holder, 714 F.3d 731 (2d Cir.
2013), the Second Circuit was interpreting a regulation,
promulgated pursuant to the Nicaraguan Adjustment and
Central American Relief Act of 1997 (NACARA), that gives
the Attorney General discretion to cancel the alien’s removal
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 INA. 8 C.F.R. § 1240.66(b)(1). The Board had
found that Reyes, an alien who had not been admitted, was
ineligible for cancellation of removal because he had a con-
viction that would make an admitted alien “deportable” un-
der INA § 237(a)(2). The Second Circuit found the Board’s
interpretation inconsistent with the “plain language” of the
regulation, under which “an applicant’s admission status
(i.e., admitted or not admitted) is critical when determining
an alien’s eligibility for … cancellation of removal.” 714 F.3d
at 736. In other words, the Reyes court found that the regula-
tion explicitly treated inadmissible aliens differently (and
more favorably) than deportable aliens. Id.
Reyes does not help Coyomani, though, because the two
statutory provisions in his case seem to conflict—one provi-
sion, INA § 237(a)(2), distinguishes between inadmissible
and deportable aliens, whereas the other, § 240A(b)(1)(C),
does not. Thus, the regulation at issue in Reyes possesses the
clarity that the statute in Coyomani’s case lacks. Moreover,
the Reyes court relied on the Board’s approach in Cortez,
which if anything seems to support the government’s posi-
tion in this case. See 714 F.3d at 737. Finally, the Second Cir-
cuit was interpreting a regulation promulgated pursuant to a
No. 13-2955 11
different statute than the one at issue here. For these reasons,
Coyomani’s argument is unconvincing.
Meanwhile, the government implies that if we find INA
§ 240A(b)(1)(C) ambiguous (as we do), we are essentially
saying that it’s possible to construe this provision as treating
inadmissible individuals more favorably than deportable in-
dividuals (because there would be two grounds for finding
deportable aliens ineligible for cancellation of removal, but
only one for finding inadmissible aliens ineligible). It is true
that, if adopted by the Board, such a reading could in some
cases reward those who enter the country unlawfully vis-à-
vis those who enter lawfully. While that result might seem
anomalous, several courts have observed that there may be
good reasons for it, so we are untroubled by this possibility.
See Reyes, 714 F.3d at 737 (“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 immigra-
tion laws.”) (citation and internal quotation marks omitted);
Taniguchi v. Schultz, 303 F.3d 950, 957–58 (9th Cir. 2002) (not-
ing that lawful permanent residents “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]’” (quoting Moore v. Ash-
croft, 251 F.3d 919, 925 (11th Cir. 2001))).
Finally, we realize that some of our sister circuits consid-
er legislative history at this juncture, see, e.g., Gonzalez-
Gonzalez v. Ashcroft, 390 F.3d 649, 652–53 (9th Cir. 2004), but
we prefer to save that inquiry for Chevron’s second step. See
Emergency Servs. Billing Corp. v. Allstate Ins. Co., 668 F.3d 459,
12 No. 13-2955
465 (7th Cir. 2012) (“In this Circuit, ‘we seem to lean toward
reserving consideration of legislative history … until the
second Chevron step.’” (quoting Bankers Life & Cas. Co. v.
United States, 142 F.3d 973, 983 (7th Cir. 1998))). For these
reasons, we do not find the meaning of INA § 240A(b)(1)(C)
“clear” at Chevron’s first step. We recognize that the Ninth
Circuit found this provision clear at Chevron’s first step, con-
cluding that the BIA’s interpretation was “[t]he most logical
reading.” Gonzalez-Gonzalez, 390 F.3d at 652. However, there
is a difference—which may be important in some Chevron
cases—between clear meaning and the best of several inter-
pretive choices. In any event, we agree with the Ninth Cir-
cuit that the Board’s reading is probably the most plausible,
so we find the Board’s interpretation reasonable at step two.
B. Chevron step two
At the second stage of the Chevron analysis, we determine
whether the agency’s interpretation is reasonable. Our re-
view at this stage is deferential; we will uphold the agency’s
interpretation so long as it is “a permissible construction of
the statute.” Chevron, 467 U.S. at 843. The government ex-
plains the Board’s approach as follows: “in determining
whether offenses are ‘described under’ INA §§ 212(a)(2),
237(a)(2), and 237(a)(3) for purposes of the eligibility criteria
of INA § 240A(b)(1)(C), only language specifically pertaining
to the criminal offense, such as the offense itself and the sen-
tence imposed or potentially imposed, should be consid-
ered.” Gov’t Brief, 13–14 (citing Cortez, 25 I. & N. Dec. at 307–
08; Almanza, 24 I. & N. Dec. at 771). Under this interpreta-
tion, it does not matter whether the particular individual is
“inadmissible” or “deportable.”
No. 13-2955 13
This interpretation is reasonable. It is a sensible way (and
perhaps the only way) to give effect to each word of INA
§ 240A(b)(1)(C). To be sure, this interpretation does not give
effect to certain words in the cross-referenced provisions, but
as noted, every possible construction necessarily reads out
certain terms. And it is quite possible that by using the
phrase “offense under,” Congress meant to do exactly what
the Board has done (even if Congress could have achieved
this result much more clearly). See Gonzalez-Gonzalez, 390
F.3d at 651–52. In addition, the Board’s interpretation gains
further support from the fact that Congress has more pre-
cisely distinguished between “inadmissibility” and “deport-
ability” in other provisions of the INA. See, e.g., INA
§ 240A(d)(1) (explaining that, when measuring an alien’s pe-
riod of continuous physical presence in the United States,
the clock stops “when the alien has committed an offense …
that renders the alien inadmissible to the United States un-
der section 212(a)(2) or removable from the United States
under section 237(a)(2) or 237(a)(4), whichever is earliest”); 8
U.S.C. § 1229b(d)(1); Cortez, 25 I. & N. Dec. at 308.
Finally, while we do not need to look to drafting history
to resolve this dispute, it lends further support to the Board’s
interpretation. An earlier version of INA § 240A(b)(1) al-
lowed cancellation of removal only for an alien who “has at
no time been convicted of an offense that would render the
alien inadmissible under section 212(a)(2)(A) or deportable
under … sections 237(a)(2) or 237(a)(3).” H.R. Conf. Rep. No.
828, 104th Cong., 2d Sess. 213 (1996). This earlier version
would have supported Coyomani’s interpretation. See Gonza-
lez-Gonzalez, 390 F.3d at 652–53. As enacted, however, the
section does not refer to (or distinguish between) grounds of
inadmissibility and grounds of deportability; instead, the
14 No. 13-2955
enacted text allows cancellation for an alien who “has not
been convicted of an offense under [INA] section 212(a)(2),
237(a)(2), or 237(a)(3).” Id.III. Conclusion
Because the Board has reasonably resolved a statutory
ambiguity, we defer to its interpretation under Chevron.
Coyomani’s petition for review is therefore DENIED.