590 F.3d 1053 (9th Cir. 2010), 05-74392, Vasquez-Hernandez v. Holder

Docket Nº:05-74392.
Citation:590 F.3d 1053
Opinion Judge:T.G. NELSON, Circuit Judge:
Party Name:Severiano VASQUEZ-HERNANDEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
Attorney:Robert F. Jacobs, Downey, CA, for the petitioner. Lyle D. Jentzer, Department of Justice, Washington, D.C., for the respondent.
Judge Panel:Before: THOMAS G. NELSON, JAY S. BYBEE and MILAN D. SMITH, JR., Circuit Judges.
Case Date:January 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1053

590 F.3d 1053 (9th Cir. 2010)

Severiano VASQUEZ-HERNANDEZ, Petitioner,

v.

Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-74392.

United States Court of Appeals, Ninth Circuit.

January 6, 2010

Argued and Submitted Nov. 2, 2009.

Page 1054

Robert F. Jacobs, Downey, CA, for the petitioner.

Lyle D. Jentzer, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078-018-615.

Before: THOMAS G. NELSON, JAY S. BYBEE and MILAN D. SMITH, JR., Circuit Judges.

T.G. NELSON, Circuit Judge:

Severiano Vasquez-Hernandez petitions for review of the Board of Immigration Appeals' (" BIA" ) decision denying his appeal from the Immigration Judge's (" IJ" ) order denying his motion to reopen.1 The IJ held that Vasquez-Hernandez was statutorily ineligible under 8 U.S.C. § 1229b(b) for cancellation of removal based on his conviction for corporal injury to a spouse, an offense described in 8 U.S.C. § 1227(a)(2), and held that the petty offense exception in 8 U.S.C. § 1182(a)(2) was inapplicable to Vasquez-Hernandez. We deny the petition for review.

I. BACKGROUND

Vasquez-Hernandez is a native and citizen of Mexico who entered the United States illegally in July 1988. On August 8, 2002, Vasquez-Hernandez was convicted in the Orange County Superior Court of violating California Penal Code § 273.5, corporal injury to a spouse. The trial court sentenced him to fourteen days in jail, eight hours of community service, and three years probation. Under § 273.5, the sentence could not have exceeded one year.

On August 9, 2002, the Immigration and Naturalization Service (" INS" ), now Immigration and Customs Enforcement (" ICE" ), charged Vasquez-Hernandez as being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Vasquez-Hernandez conceded removability. In August 2004, the IJ pretermitted Vasquez-Hernandez's request for cancellation of removal, finding that Vasquez-Hernandez was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b) because he had been convicted of a crime of domestic violence as defined in 8 U.S.C. § 1227(a)(2)(E).

The IJ denied Vasquez-Hernandez's motion to reopen, finding that the petty offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii) did not apply to Vasquez-Hernandez's conviction. Therefore, the IJ found Vasquez-Hernandez statutorily ineligible for cancellation of removal. The BIA affirmed. Vasquez-Hernandez filed a timely petition for review with this court.

II. STANDARD OF REVIEW

As the BIA adopted the IJ's decision and also added its own reasons, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). We review the denial of a motion to reopen for abuse of discretion and questions of law de novo. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005).

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III. DISCUSSION

The question here is whether the petty offense exception found in 8 U.S.C. § 1182(a)(2)(A)(ii) is applicable to an 8 U.S.C. § 1229b(b) cancellation of removal request if that request is otherwise barred by an alien's conviction for an offense described in § 1227(a)(2) or § 1227(a)(3).2

The cancellation of removal argument before us is understandable only by reference to the statutory scheme that governs removability and cancellation of removal. Before an alien is removed from the United States, a court usually completes two separate inquiries. First, a court must find that an alien is removable. Second, a court may find that some other kind of statutory relief prevents removal. One of these grounds of relief is called cancellation of removal. Distinguishing, therefore, between the removal statutes, § 1182 and § 1227, and the cancellation of removal statute, § 1229b, is important here.

Whether an alien is removable in the first instance depends on whether the alien is inadmissible or deportable. An inadmissible alien is one who was not admitted legally to the United States and is removable under § 1182, whereas a deportable alien is in the United States lawfully and is removable under § 1227. Each section contains criminal offense categories that render the alien removable. See 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Section 1182(a)(2) also contains a provision known as the " petty offense exception," § 1182(a)(2)(A)(ii), which disallows removal under § 1182(a)(2) if the conviction meets certain requirements.3

Once an alien is found removable, the alien may seek relief from removal through cancellation of removal under § 1229b(b). See 8 U.S.C. § 1229b(b). Cancellation of removal...

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