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Interim Decision #3816

Matter of Fidencio PINA-GALINDO, Respondent

Decided September 23, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the

Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls

within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as

having been convicted of two or more offenses for which the aggregate sentences

imposed were 5 years or more.

FOR RESPONDENT: Stephen O’Connor, Esquire, Austin, Texas

BEFORE: Board Panel:

Temporary Board Member.

PAULEY and GREER, Board Members; DONOVAN,

PAULEY, Board Member:

In a decision dated August 13, 2013, an Immigration Judge found the

respondent removable under section 212(a)(6)(A)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien present

in the United States without permission. The Immigration Judge also

pretermitted the respondent’s application for cancellation of removal under

section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012), but granted

him the privilege of voluntary departure. The respondent has appealed

from that decision. The appeal will be dismissed.

The respondent is a native and citizen of Mexico. The record reflects

that he has multiple convictions related to intoxication, including a 2005

third degree felony conviction for driving while intoxicated, for which he

received a suspended sentence of 10 years of confinement and 5 years of

probation. He conceded that he is removable but applied for the relief of

cancellation of removal.

To be eligible for cancellation of removal, an alien must establish,

among other things, that he has not been convicted of an offense under

section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act. See section

240A(b)(1)(C) of the Act. The Immigration Judge determined that the

respondent was statutorily ineligible for cancellation of removal because he

fell within the scope of section 212(a)(2)(B) of the Act based on his

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convictions for two or more offenses for which the aggregate sentences to

confinement were 5 years or more.1

On appeal, the respondent challenges the Immigration Judge’s decision

to pretermit his application for cancellation of removal. He argues

that section 212(a)(2)(B) of the Act does not relate to any unspecified

offense but, rather, is limited to the offenses described in section

212(a)(2)(A)(i), namely, crimes involving moral turpitude and violations

of controlled substances laws. He also contends that the use of the singular

word “offense” in section 240A(b)(1)(C) indicates that it does not

encompass multiple offenses and therefore does not include section

212(a)(2)(B) of the Act, which requires convictions for two or more

offenses.

In this regard, the respondent relies on legislative history, specifically

the Conference Report for the legislation enacting section 240A(b)(1)(C),

which states the following: “Section 240A(b)(1) provides that the Attorney

General may cancel removal in the case of 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 redesignated sections 237(a)(2) or

237(a)(3) . . . .” H. Rep. No. 104-828, at 213 (1996) (Conf. Rep.), 1996

WL 563320 (emphasis added).

We have repeatedly concluded that the plain language of section

240A(b)(1)(C) incorporates the entirety of section 212(a)(2) of the Act. See

Matter of Garcia, 25 I&N Dec. 332, 335 (BIA 2010); Matter of Cortez,

25 I&N Dec. 301, 304 (BIA 2010); Matter of Garcia-Hernandez, 23 I&N

Dec. 590, 593 (BIA 2003). Since that was in the context of determining

whether the alien was ineligible for cancellation of removal based on

a conviction for a crime involving moral turpitude under section

212(a)(2)(A), it may not be considered dispositive as to the provision

relating to multiple crimes so as to permit resort to legislative history. See,

e.g., Lopez v. Sentrillon Corp., 749 F.3d 347, 349 (5th Cir. 2014)

(emphasizing that legislative history can only be consulted after

determining that a statute is ambiguous).

Even assuming, however, that the statute is ambiguous regarding

whether the reference in section 240A(b)(1)(C) to an alien “convicted of an

offense under section 212(a)(2)” extends to all the relevant portions of

section 212(a)(2), the legislative history relied on by the respondent, while

not without some force, is not persuasive. The language quoted by the

respondent “does not track the language contained in the statute as written

1

The respondent does not dispute that his aggregate sentences to confinement totaled

5 years or more. See Matter of Esposito, 21 I&N Dec. 1, 2–5 (BIA 1995) (construing a

prior version of section 212(a)(2)(B) of the Act).

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Interim Decision #3816

and approved by Congress. In light of the clear language of section

240A(b)(1)(C) . . . , we find this imprecise reference in the legislative

history insufficient to guide our construction of the statute.” Matter of

Bustamante, 25 I&N Dec. 564, 567−68 n.1 (BIA 2011). We conclude that

the phrase “convicted of an offense under section 212(a)(2)” is most

reasonably interpreted as encompassing all of the provisions of section

212(a)(2) that are based on an alien’s conviction, including section

212(a)(2)(B), which relates to multiple convictions for which the aggregate

sentences to confinement were 5 years or more.

Moreover, the Conference Report language quoted by the respondent

regarding section 212(a)(2)(A) may well have reflected the belief that

ineligibility based on a conviction for a crime involving moral turpitude

would be the more common ground for finding an alien ineligible for

cancellation of removal than the ground based on multiple convictions for

which the aggregate sentences to confinement were 5 years or more. This

expectation is borne out by our research, which shows that since the

enactment of section 240A(b)(1)(C) of the Act, the circuit courts have

issued numerous published and unpublished decisions involving section

212(a)(2)(A), while we have found only a single unpublished decision

involving section 212(a)(2)(B).

In that decision, the United States Court of Appeals for the Fifth Circuit,

in whose jurisdiction this case arises, rejected an argument similar to that

raised by the respondent. Ramos-Godinez v. Mukasey, 295 F. App’x 733

(5th Cir. 2008). The alien in that case argued that the cross-reference to

“section 212(a)(2)” of the Act in section 240A(b)(1)(C) was a clerical error,

because Congress intended to refer only to the crimes described in section

212(a)(2)(A). In rejecting this argument, the Fifth Circuit noted that

Congress had twice amended section 240A(b)(1)(C) without changing the

statutory cross-reference that the alien alleged was erroneous. Id. at 734.

The court deferred to our interpretation of the cross-reference as reasonable

and upheld our decision to bar from cancellation of removal an alien who is

subject to inadmissibility under section 212(a)(2)(B) of the Act. Id.

Although Ramos-Godinez v. Mukasey does not have the persuasive

authority of a published decision, we find it instructive and consistent with

our determination that the cross-reference in section 240A(b)(1)(C) of the

Act encompasses the entirety of section 212(a)(2).

Similarly, we are not persuaded that because the phrase “convicted of an

offense under section 212(a)(2)” refers to a singular “offense,” it cannot

include section 212(a)(2)(B), which requires convictions for two or more

offenses. First, in determining the meaning of any Act of Congress, “words

importing the singular include and apply to several persons, parties, or

things” unless the context indicates otherwise. 1 U.S.C. § 1 (2012). Thus,

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we conclude that the singular “offense” in the operative phrase includes the

multiple “offenses” in section 212(a)(2)(B).

Matter of Garcia-Hernandez also demonstrates the flaw in the

respondent’s argument that section 240A(b)(1)(C) of the Act does not

contemplate the use of multiple offenses. In that case, the alien was

convicted of two offenses. One offense qualified as a crime involving

moral turpitude, but it was a petty offense under section 212(a)(2)(A)(ii) of

the Act. The second offense was battery, which was not a crime involving

moral turpitude. We held that the alien was eligible for cancellation of

removal because one of his offenses qualified as a petty offense, and the

second offense was not a crime involving moral turpitude. Thus, the alien

did not fall within the scope of the cross-reference to section 212(a)(2) in

section 240A(b)(1)(C). Conversely, if an alien has been convicted of two

or more crimes involving moral turpitude, only one of which qualified

for the petty offense exception, that alien would be precluded from

applying for cancellation of removal. Thus, the operation of the petty

offense exception and its interaction with sections 212(a)(2)(A)(i) and

240A(b)(1)(C) of the Act undermine the respondent’s argument that the

phrase “convicted of an offense under section 212(a)(2)” does not cover the

consideration and interplay of multiple offenses.

Accordingly, because we find no merit to the respondent’s arguments,

his appeal will be dismissed. The Immigration Judge’s grant of voluntary

departure will be reinstated.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the Immigration Judge’s order and

conditioned upon compliance with conditions set forth by the Immigration

Judge and the statute, the respondent is permitted to voluntarily depart the

United States, without expense to the Government, within 60 days from the

date of this order or any extension beyond that time as may be granted by

the Department of Homeland Security (“DHS”). See section 240B(b) of

the Act, 8 U.S.C. § 1229c(b) (2012); see also 8 C.F.R. §§ 1240.26(c), (f)

(2014). In the event the respondent fails to voluntarily depart the United

States, the respondent shall be removed as provided in the Immigration

Judge’s order.

NOTICE: If the respondent fails to voluntarily depart the United

States within the time period specified, or any extensions granted by the

DHS, the respondent shall be subject to a civil penalty as provided by the

regulations and the statute and shall be ineligible for a period of 10 years

for any further relief under section 240B and sections 240A, 245, 248, and

249 of the Act, 8 U.S.C. §§ 1229b, 1255, 1258, and 1259 (2012). See

section 240B(d) of the Act.

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WARNING: If the respondent files a motion to reopen or reconsider

prior to the expiration of the voluntary departure period set forth above, the

grant of voluntary departure is automatically terminated; the period allowed

for voluntary departure is not stayed, tolled, or extended. If the grant of

voluntary departure is automatically terminated upon the filing of a motion,

the penalties for failure to depart under section 240B(d) of the Act shall not

apply. See 8 C.F.R. § 1240.26(e)(1).

WARNING: If, prior to departing the United States, the respondent

files any judicial challenge to this administratively final order, such as a

petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252

(2012), the grant of voluntary departure is automatically terminated, and the

alternate order of removal shall immediately take effect. However, if the

respondent files a petition for review and then departs the United States

within 30 days of such filing, the respondent will not be deemed to have

departed under an order of removal if he provides to the DHS such

evidence of his departure that the Immigration and Customs Enforcement

Field Office Director of the DHS may require and provides evidence the

DHS deems sufficient that he has remained outside of the United States.

The penalties for failure to depart under section 240B(d) of the Act shall

not apply to an alien who files a petition for review, notwithstanding any

period of time that he remains in the United States while the petition for

review is pending. See 8 C.F.R. § 1240.26(i).

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