FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEVERIANO VASQUEZ-HERNANDEZ,
Petitioner, No. 05-74392
v.
Agency No.
A078-018-615
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 2, 2009—Pasadena, California
Filed January 6, 2010
Before: Thomas G. Nelson, Jay S. Bybee and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Thomas G. Nelson
419
VASQUEZ-HERNANDEZ v. HOLDER 421
COUNSEL
Robert F. Jacobs, Downey, California, for the petitioner.
Lyle D. Jentzer, Department of Justice, Washington, D.C., for
the respondent.
422 VASQUEZ-HERNANDEZ v. HOLDER
OPINION
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 cancella-
tion 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 pre-
termitted Vasquez-Hernandez’s request for cancellation of
removal, finding that Vasquez-Hernandez was statutorily inel-
1
Vasquez-Hernandez also appealed the decision of the Administrative
Appeals Office regarding the cancellation of his bond. By agreement of
the parties, this issue is no longer before us.
VASQUEZ-HERNANDEZ v. HOLDER 423
igible for cancellation of removal under 8 U.S.C. § 1229b(b)
because he had been convicted of a crime of domestic vio-
lence 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 statu-
torily 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).
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 under-
standable only by reference to the statutory scheme that gov-
erns removability and cancellation of removal. Before an
alien is removed from the United States, a court usually com-
pletes two separate inquiries. First, a court must find that an
2
We do not decide whether the § 1182(a)(2) petty offense exception
applies to cancellation of removal if the § 1229b(b) ineligibility offense is
one described in § 1182(a)(2).
424 VASQUEZ-HERNANDEZ v. HOLDER
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. Distin-
guishing, therefore, between the removal statutes, § 1182 and
§ 1227, and the cancellation of removal statute, § 1229b, is
important here.
[1] 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 remov-
able under § 1227. Each section contains criminal offense cat-
egories 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
[2] 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
is available for both inadmissible and deportable aliens.
Unlike the removal statutes, the cancellation of removal stat-
ute does not treat inadmissible and deportable aliens differ-
ently. Rather, the requirements for cancellation of removal
apply regardless of whether the alien is inadmissible or
deportable for removal purposes. See Gonzalez-Gonzalez v.
Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (holding that an
alien is statutorily ineligible for cancellation of removal if the
alien is convicted of an offense described in either
3
If § 1182(a)(2) was the basis for Vasquez-Hernandez’s removability,
the petty offense exception may have applied in determining whether
Vasquez-Hernandez was removable. However, the basis for Vasquez-
Hernandez’s removability is not § 1182(a)(2), but rather is § 1182(a)(6),
presence in the United States without admission or parole. Section
1182(a)(2)’s petty offense exception is therefore inapplicable in determin-
ing his removability.
VASQUEZ-HERNANDEZ v. HOLDER 425
§ 1182(a)(2) or § 1227(a)(2), regardless of the alien’s status
as inadmissible or deportable).
[3] Cancellation of removal is available if the alien demon-
strates: (1) continuous physical presence in the United States
for at least ten years; (2) good moral character; (3) no convic-
tion for an offense described in §§ 1182(a)(2), 1227(a)(2), or
1227(a)(3); and (4) extreme and unusual hardship to a family
member. 8 U.S.C. § 1229b(b). The third requirement—no
conviction for an offense described in one of the removal stat-
utes at §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)—is at issue
here.
[4] With this background in mind, we turn to the present
case. Vasquez-Hernandez is removable as an inadmissible
alien under § 1182(a)(6). He seeks cancellation of removal
under § 1229b(b). He has, however, been convicted of an
offense described in § 1227(a)(2)—a crime of domestic
violence—which, under the plain terms of § 1229b(b), makes
him ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(b).
Vasquez-Hernandez urges us to apply, in the cancellation
of removal context, the petty offense exception that is applica-
ble in the removal context, and thereby apply the petty
offense exception to the domestic violence offense that ren-
ders him ineligible for cancellation of removal. The statutory
language and our precedent preclude this result.
[5] The petty offense exception is set forth in the removal
statutes at § 1182(a)(2)(A)(ii). The language of the exception
limits itself by referencing only those offenses described in
the preceding clause, § 1182(a)(2)(A)(i)(I). See 8 U.S.C.
§ 1182(a)(2)(A)(ii) (“Clause (i)(I) shall not apply to an alien
who committed only one crime” if the conviction meets the
requirements for the petty offense exception). The petty
offense exception does not reference § 1227(a)(2) or
§ 1229b(b), nor is there any other statutory basis for applying
426 VASQUEZ-HERNANDEZ v. HOLDER
the petty offense exception here. We therefore hold that the
petty offense exception is not applicable to Vasquez-
Hernandez’s § 1227(a)(2) domestic violence offense, and that
Vasquez-Hernandez is ineligible for cancellation of removal
under § 1229b(b).
[6] We appreciate the potential for confusion caused by the
fact that the offenses described in the cancellation of removal
statute, § 1229b(b), cross-reference the removal statutes, but
as this court noted in Gonzalez-Gonzalez, the cancellation of
removal statute “indicates that it should be read to cross-
reference a list of offenses[,] rather than the [removal] statutes
as a whole.” 390 F.3d at 652. Each of the cross-referenced
offense sections is a separate barrier to cancellation of
removal. Consequently, a conviction for an offense described
in § 1227(a)(2) that may meet the requirements of the petty
offense exception in § 1182(a)(2) is still a bar to cancellation
of removal.
Vasquez-Hernandez relies on In re Garcia-Hernandez, 23
I. &. N. Dec. 590 (BIA 2003), in which the BIA held that an
inadmissible alien convicted of a crime of domestic violence
was entitled to use the petty offense exception in
§ 1182(a)(2)(A)(ii) for cancellation of removal purposes. Id.
at 592. For three reasons, this reliance is misplaced. First, the
petitioner in In re Garcia-Hernandez would have been ineligi-
ble for cancellation of removal because of an offense
described in § 1182(a)(2), a crime of moral turpitude, not
because of an offense described in § 1227(a)(2), as was
Vasquez-Hernandez. Although both the petitioner in In re
Garcia-Hernandez and Vasquez-Hernandez were convicted
of violating the same California Penal Code section, 273.5,
this is irrelevant for cancellation of removal purposes because
that offense meets the criteria set forth in both § 1182(a)(2)
and § 1227(a)(2). Second, and more importantly, the BIA
decided In re Garcia-Hernandez before this court’s ruling in
Gonzalez-Gonzalez, which clarified that an inadmissible alien
is ineligible for cancellation of removal not just for offenses
VASQUEZ-HERNANDEZ v. HOLDER 427
described in § 1182(a)(2), but also for offenses described in
§ 1227(a)(2) or § 1227(a)(3). Third, allowing an inadmissible
alien to use the petty offense exception for cancellation of
removal purposes when a deportable alien may not leads to an
unacceptable result: that illegal entrants’ requests for cancel-
lation of removal are treated more favorably than those from
legal entrants. See Gonzalez-Gonzalez, 390 F.3d at 652-53.
[7] Here, Vasquez-Hernandez’s conviction for corporal
injury to a spouse under California Penal Code § 273.5 is an
offense described in § 1227(a)(2). Regardless of whether his
conviction may meet the requirements of the petty offense
exception in § 1182(a)(2)(A)(ii), Vasquez-Hernandez is statu-
torily ineligible for cancellation of removal.
IV. CONCLUSION
For the foregoing reasons, Vasquez-Hernandez’s petition
for review of the BIA’s order affirming the IJ’s denial of his
motion to reopen is denied.
DENIED.