In re Jurado-Delgado
| Citation | 24 I&N Dec. 29 |
| Decision Date | 28 September 2006 |
| Docket Number | File A38 846 972.,Interim Decision No. 3543. |
| Parties | In re Jimmy Roberto JURADO-Delgado, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In decision dated February 7, 2006, an Immigration Judge found the respondent removable as an alien convicted of two crimes involving moral turpitude, but granted his request for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000). The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained.
The respondent is a native and citizen of Ecuador who was admitted to the United States as a lawful permanent resident on September 15, 1985. The record reflects that he was convicted in 1991 of retail theft in violation of Pennsylvania law. It further reflects that he was also convicted in Pennsylvania in 1992 of unsworn falsification to authorities for an offense that was committed on December 19, 1991. In addition, the respondent was convicted in 1997 of two crimes involving moral turpitude that were the basis of the charge of removability in his Notice to Appear (Form I-862). The respondent was not charged on the basis of either his 1991 or his 1992 conviction.
In proceedings before the Immigration Judge, the respondent conceded that he was removable, both on the initial charge and on a lodged charge that he falsely represented himself to be a United States citizen. He applied for cancellation of removal under section 240A(a) of the Act, which the Immigration Judge granted. The Immigration Judge concluded that neither the respondent's 1991 conviction for retail theft nor his 1992 conviction for unsworn falsification to authorities triggered the "stop-time" rule under section 240A(d)(1)(B) of the Act because they were not the basis of a charge and finding of removability. The Immigration Judge relied on our decision in Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998), involving a waiver under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), which placed limitations on the availability of relief to any alien who "is deportable by reason of having committed" a specified offense. We held that in order to be eligible for a waiver, the alien must have been "charged with, and found deportable on, the requisite ground of deportability." Id. at 1201 n.3
The DHS argues that Matter of Fortiz, supra, is not applicable in this case. According to the DHS, the respondent's offenses "render" him inadmissible under section 212(a)(2)(A)(i) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i) (2000), as they are both crimes involving moral turpitude. Because these two crimes were committed within 7 years of his admission to the United States, the DHS contends that the respondent has failed to demonstrate the requisite period of continuous residence to establish his eligibility for cancellation of removal. We agree and find that the Immigration Judge erred in concluding that the respondent is eligible for cancellation of removal.
Section 240A(d)(1)(B) of the Act, commonly known as the "stop-time" rule, provides that the period of continuous residence for cancellation of removal is terminated when an alien commits a criminal offense referred to in section 212(a)(2) of the Act that "renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest." (Emphasis added.) We note that the word "render" is defined as "to cause to be or become." Merriam-Webster's Collegiate Dictionary 987 (10th ed. 2002).
In interpreting a statute we look first to the language of the statute. Matter of Nolasco, 22 I&N Dec. 632, 635-36 (BIA 1999). "The paramount index of congressional intent is the plain meaning of the words used in the statute taken as a whole." Id. at 636 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)). "Where the language is clear, we must give effect to the unambiguously expressed intent of Congress." Id. (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)).
The language employed by Congress in the "stop-time" provision is clearly different from that in former section 212(c) of the Act, which we addressed in Matter of Fortiz, supra. That section provides that an alien who "is deportable" by reason of having committed a specified offense is not eligible for a waiver. In other sections of the Act Congress has employed the phrases "is inadmissible," "is deportable," or "is removable" to describe certain limitations that exist on relief or on judicial review. See, e.g., section 240A(c)(4) of the Act; REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, § 106(a)(1)(A)(ii), 119 Stat. 231, 310 (). We have long held that an alien must be charged and found deportable where Congress has used the phrase "is deportable." See Matter of Fortiz, supra; Matter of Ching, 12 I&N Dec. 710 (BIA 1968); Matter of T-, 5 I&N Dec. 459 (BIA 1953).
However, Congress used the word "renders"in section 240A(d)(1)(B) of the Act, and we must assume that it intended a different meaning by the use of that word. We find that the phrase "renders the alien inadmissible . . . or removable" in section 240A(d)(1)(B) of the Act requires only that an alien "be or become" inadmissible or removable, i.e., be potentially removable if so charged. Consequently, we conclude that an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct in question to terminate continuous residence in this country.
Second, and apart from the foregoing considerations based on principles of statutory construction, we also find it unlikely that Congress would have wished to make the application of the "stop-time" rule for accruing continuous residence dependent on whether the DHS opted to invoke an alien's commission of certain enumerated offenses as grounds for the alien's removal. We note that an alien need not have been convicted of an offense under section 212(a)(2) of the Act in order for the "stop-time" rule to apply. For example, the rule may be triggered by an alien's admission of acts constituting the essential elements of such an offense under section 212(a)(2)(A)(i). Thus, Congress did not require that the appropriate prosecuting authorities have previously charged an alien with a referenced offense in order to invoke the "stop-time" provision of section 240A(d)(1)(B) of the Act. Similarly, there is no reason to believe that Congress intended that an alien must have been charged with such an offense as a ground of inadmissibility or removability in order for the provision to stop the alien's accrual of continuous residence.
For the above-stated reasons, we find that our decision in Matter of Fortiz, supra, is not controlling in this case. See also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) ().
The respondent also contends that the "stop-time" provisions should not apply in his case because his alleged crimes involving moral turpitude were committed prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). We have previously addressed and decided this retroactivity issue in Matter of Perez, 22 I&N Dec. 689 (BIA 1999), where we held that the "stop-time" provision applies, even if the commission of the offense preceded the enactment of the IIRIRA. We have also recently reconsidered the question in Matter of Robles, 24 I&N Dec. 22 (BIA 2006), where we found that the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), does not require a different conclusion. See also Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422 ( 2006) (); Sotelo v. Gonzales, 430 F.3d 968, 972 n.2 (9th Cir. 2005).
We point out that application of the "stop-time" rule in this case is triggered by the commission of a crime, rather than by a conviction resulting from a guilty plea. It is therefore distinguishable from INS v. St. Cyr, supra, which found that the amendments and repeal of former section 212(c) of the Act cannot be retroactively applied against aliens who pled guilty to their crimes. The Court in St. Cyr emphasized the quid pro quo nature of plea agreements and the benefits to each side during the transaction. Id. at 321-22. The respondent's situation does not involve the same considerations. Furthermore, the fact that the respondent has not specifically asserted that he would have acted differently but for the enactment of the "stop-time" rule undermines his argument...
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