Gonzalez-Gonzalez v. Ashcroft, No. 03-71647.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Thomas
• Citation: 390 F.3d 649
• Parties: Sabino GONZALEZ-GONZALEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Docket Number: No. 03-71647.
• Decision Date: 29 November 2004

390 F.3d 649 Sabino GONZALEZ-GONZALEZ, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent. No. 03-71647. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 8, 2004. Filed November 29, 2004.

Matt Adams, Granger, WA, for the petitioner.

Page 650

John Cunningham (argued) and Stephen J. Flynn (on briefs), United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before D.W. NELSON, THOMAS, Circuit Judges, and DAVID A. EZRA,^* District Judge.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether an inadmissible alien who was convicted of a crime of domestic violence is also ineligible for cancellation of removal. We conclude that he is and deny the petition for review.

I

Gonzalez-Gonzalez is a Mexican native and citizen who illegally entered the United States in 1983. Sometime after moving to the United States, Gonzalez-Gonzalez married a United States citizen. The couple had three children. His spouse petitioned for an immediate relative visa on behalf of Gonzalez-Gonzalez in 1988, but did not pursue the matter beyond the initial filing; thus, Gonzalez-Gonzalez never obtained a visa or United States citizenship. In 1993, Gonzalez-Gonzalez and his wife divorced, and he assumed sole custody over the three children, which he has since maintained.

On May 2, 2000, Gonzalez-Gonzalez was convicted of "assault in the fourth degree/domestic violence," stemming from a November 17, 1999 assault of "P.G.," with whom he was in a "family member or household relationship." Gonzalez-Gonzalez was incarcerated for 150 days following this offense. Shortly after his release from incarceration, the Immigration and Naturalization Service ("INS") served him with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for entering the United States without being admitted or paroled. Gonzalez-Gonzalez conceded removability, but requested relief in the form of cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1).

The immigration judge ("IJ") found Gonzalez-Gonzalez ineligible for cancellation of removal based on 8 U.S.C. § 1229b(b)(1)(C), which renders ineligible an alien who has "been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)." Section 1182 is titled "Inadmissible aliens," and domestic violence offenses are not listed under § 1182(a)(2); § 1227 is titled "Deportable aliens" and "Domestic Violence" is listed as an offense under § 1227(a)(2), which lists criminal grounds of deportation.¹ 8 U.S.C. §§ 1182(a)(2), 1227(a)(2).

Gonzalez-Gonzalez appealed to the Board of Immigration Appeals ("BIA"), arguing that he may be found ineligible only for commission of offenses listed under § 1182(a)(2)—and not the § 1227 offenses—as he is an inadmissible, rather than deportable, alien. The BIA affirmed the decision of the IJ. In its written opinion, the BIA interpreted the § 1229b phrase "convicted of an offense under" to mean "convicted of an offense described under" any of the three statutes. (emphasis in original).

Thus, the BIA found Gonzalez-Gonzalez's domestic violence conviction barred cancellation, notwithstanding his

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status as an inadmissible, rather than deportable alien. Gonzalez-Gonzalez now petitions for review of this decision. We review issues of statutory interpretation de novo. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003).

II

The question before us is whether the BIA properly interpreted 8 U.S.C. § 1229b, under which the Attorney General may grant cancellation of removal to aliens who are otherwise removable. In making that determination, we employ the analysis set forth by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), as further explained in Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Under Chevron, we must consider first "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "If Congress has done so, the inquiry is at an end; the court `must give effect to the unambiguously expressed intent of Congress.'" Brown & Williamson, 529 U.S. at 132, 120 S.Ct. 1291 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). In making that assessment, we look not only at the precise statutory section in question, but analyze the provision in the context of the governing statute as a whole, presuming congressional intent to create a "symmetrical and coherent regulatory scheme." Id. at 133, 120 S.Ct. 1291 (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). Finally, "we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." Id. If, after conducting such an analysis, we conclude that Congress has not addressed the issue, we "must respect the agency's construction of the statute so long as it is permissible." Id. at 132, 120 S.Ct. 1291 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

Thus, we begin with the plain words of the statute. Under 8 U.S.C. § 1229b(b)(1)(C), cancellation is available only if the alien "has not been convicted of an offense under section 1182(a)(2), 1227(a)(2),...