Cite as 24 I&N Dec. 218 (BIA 2007) Interim Decision #3570
In re Sandra Patricia GONZALEZ-SILVA, Respondent
File A96 149 596 – San Francisco
Decided June 27, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E) (2000), is not “convicted of an
offense under” that section and therefore is not barred from establishing eligibility for
cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C)
(2000).
FOR RESPONDENT: Samuel U. Ogbu, Esquire, Emeryville, California
BEFORE: Board Panel: HOLMES, MILLER and GRANT, Board Members.
GRANT, Board Member:
In a decision dated March 13, 2006, which incorporated an earlier decision
of February 23, 2006, an Immigration Judge pretermitted the respondent’s
application for cancellation of removal for nonpermanent residents under
section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)
(2000). The respondent has appealed from that decision. The appeal will be
sustained, and the record will be remanded to the Immigration Judge for
further proceedings.
The respondent is a 36-year-old native and citizen of Mexico who entered
the United States without inspection or parole on or about February 25, 1992.
She was served with a Notice to Appear (Form I-862) on December 23, 2002,
charging that she is subject to removal under section 212(a)(6)(A)(i) of the
Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2000). Removability is not in dispute.
Section 240A(b)(1) of the Act, which sets forth the criteria to establish
eligibility for cancellation of removal for certain nonpermanent residents,
provides, in pertinent part, as follows:
The Attorney General may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or deportable
from the United States if the alien–
(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or
237(a)(3) . . . .
218Cite as 24 I&N Dec. 218 (BIA 2007) Interim Decision #3570
The Immigration Judge pretermitted the respondent’s cancellation
application on the basis of her November 30, 1994, conviction for willful
cruelty or unjustifiable punishment of a child in violation of section 237a(b)
of the California Penal Code, finding that she had been convicted of an
offense under section 237(a)(2)(E)(i) of the Act, 8 U.S.C. § 1227(a)(2)(E)(i)
(2000). The Immigration Judge rejected the respondent’s argument that her
1994 conviction does not bar her from applying for cancellation of
removal because section 237(a)(2)(E) is only effective as to convictions
occurring after September 30, 1996, the enactment date of the law that added
that section to the Act. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 350,
110 Stat. 3009-546, 3009-639 (“IIRIRA”). Citing the Ninth Circuit’s decision
in Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004), the
Immigration Judge found that the respondent was confusing the issue of
removability with the issue of eligibility for the requested relief. She
concluded that eligibility for cancellation of removal, a form of relief enacted
in 1996 in the IIRIRA, is explicit in the statute, and that the section
237(a)(2)(E) bar applies to all convictions, regardless of when they occurred.
In Gonzalez-Gonzalez v. Ashcroft, supra, the Ninth Circuit held that the
most logical reading of section 240A(b)(1)(C) is that the phrase “convicted of
an offense under” section 237(a)(2) (and the two other sections included in the
statute) means “convicted of an offense described under” those sections. Id.
at 652. Therefore, an alien who was not subject to removal under section
237(a)(2) of the Act because he was inadmissible, rather than deportable, was
nonetheless found to be ineligible for cancellation of removal as a result of his
conviction for an offense described under section 237(a)(2) of the Act. The
court found that Congress “did not intend to carve out an exception for
inadmissible aliens” when it made aliens who committed crimes of violence
ineligible for cancellation of removal. Id. at 653.
The respondent’s claim is not that sections 237(a)(2)(E) and
240A(b)(1)(C) of the Act do not preclude her from establishing eligibility for
cancellation of removal because she is an inadmissible, rather than a
deportable, alien. She asserts instead that she is not barred from establishing
eligibility for that relief because her conviction preceded the effective date of
section 237(a)(2)(E) of the Act. In Matter of Garcia-Hernandez, 23 I&N Dec.
590 (BIA 2003), we found that the language of section 240A(b)(1)(C) of the
Act requiring an alien to show that he “has not been convicted of an offense
under section 212(a)(2) of the Act” incorporated the entirety of the offense
described under section 212(a)(2), including the exception for petty offenses
set forth therein. As we stated in that case, “Put in other terms, the
‘description’ of the category of offenses encompassing crimes involving moral
turpitude also includes the exception.” Id. at 593.
219Cite as 24 I&N Dec. 218 (BIA 2007) Interim Decision #3570
Similarly, we conclude that an alien whose conviction precedes the
effective date for section 237(a)(2)(E) of the Act has not been “convicted
under” section 237(a)(2) of the Act. While this is a close question, we find
that an offense can be one “described” in section 237(a)(2)(E) only if the
conviction for that offense occurred after September 30, 1996. See IIRIRA
§ 350(b), 110 Stat. at 3009-640 (stating that the amendment applies to
convictions occurring after the date of enactment). This conclusion is not
inconsistent with the Ninth Circuit’s reasoning in Gonzalez-Gonzalez v.
Ashcroft, supra, which merely held that Congress had not carved out an
exception for inadmissible aliens when it made aliens who committed crimes
of violence ineligible for cancellation of removal. Because the respondent’s
November 1994 conviction preceded the effective date of section 237(a)(2)(E)
of the Act, she has not been “convicted of an offense under” that section
within the meaning of section 240A(b)(1)(C) of the Act and therefore is not
ineligible for cancellation of removal.
Accordingly, the respondent’s appeal will be sustained, and the record will
be remanded for further consideration of her application for cancellation of
removal.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
220