Jose Garcia-Jimenez v. Alberto R. Gonzales, Attorney General

PREGERSON, Circuit Judge,

dissenting:

Garcia-Jimenez is not a man with a clean record. He has two convictions, and there is evidence that he engaged in alien smuggling. In June 1995, Garcia-Jimenez pled guilty to corporal injury of a spouse. In March 1996, he pled guilty to possession of cocaine. In May 2000, he allegedly attempted to smuggle his sister-in-law and niece into the United States.

On June 15, 2000, the former INS initiated removal proceedings against Garcia-Jimenez based on his convictions for domestic violence and drug possession. On February 19, 2002, the INS added a re-movability charge based on the smuggling incident. All charges were before the IJ at one hearing. Garcia-Jimenez conceded removability, but sought both suspension of deportation and cancellation of removal. These two forms of relief are largely equivalent. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-597. That statute replaced the suspension of deportation process with the more stringent cancellation of removal process.

Because Garcia-Jimenez pled guilty to the domestic violence and drug charges before Congress enacted IIRIRA, he was eligible for a waiver of deportation under former § 212(c). The smuggling incident, however, occurred after IIRIRA. Therefore, with regards to the smuggling incident, Garcia-Jimenez was not eligible for § 212(c) relief and had to apply for cancel*1087lation of removal under § 1229b(a). The BIA held, however, that Garcia-Jimenez was not eligible for cancellation of removal because he had already received a waiver for suspension of deportation under § 212(c).1

Section 1229b(c)(6) provides that cancellation of removal is not available to:

[a]n alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 1254(a) of this title or who has been granted relief under [§ 212(c)] of this title, as such sections were in effect before September 30,1996.

Garcia-Jimenez argues that § 1229b(c)(6) does not apply to him because he was granted § 212(c) relief in the same proceeding in which he sought cancellation of removal, not in a previous proceeding. I agree.

The majority opinion reads the word “previously” to refer only to a situation where an alien was granted relief under 8 U.S.C. § 1254. Section 1229b(c)(6) mentions three forms of relief: cancellation of removal under § 1229b(a), suspension of deportation under § 1254, and waiver of deportation under former § 212(c). As the majority explains, Congress used the word “or” in § 1229b(c)(6) to create three different classes of aliens. (Maj. Op. 1085.) The majority argues that the word “previously” appears in the part of the statute that identifies the first class of aliens, but not in the portion of the statute referring to the second or third classes of aliens. (Maj. Op. 1085.)

There is little support for the argument that Congress intended this section to apply to events occurring in a single immigration proceeding. Such a reading of the statute is untenable. It leads to an absurd result in situations like the case before us where an IJ does not reach the merits of an alien’s petition simply because of the dates on which certain incidents occurred. Had all of Garcia-Jimenez’s infractions occurred before September 30, 1996 (the effective . date of IIRIRA), he would have been eligible to apply for a waiver of deportation. Had all of his infractions occurred after September 30, 1996, he would have been eligible to apply for cancellation of removal. Instead his infractions straddle this date, and the BIA denied review on the merits.

It is illogical to conclude that Garcia-Jimenez was “previously ... granted relief under [§ 212(c)],” § 1229b(c)(6) (emphasis added), when that grant was part of the- same proceeding where he applied for cancellation of removal. Construing “previously” narrowly to include decisions occurring in the same proceeding, effectively prevents any alien with multiple infractions on his record from even petitioning for appropriate relief. Taking the example before us: The IJ could have first granted a § 212(c) waiver of Garcia-Jimenez’s domestic violence conviction. The IJ could have then refrained from evaluating the cocaine conviction because the IJ “previously” granted relief under § 212(c). This unreasonable result would be the effect of allowing “previously” to cover decisions made in the context of a single proceeding.

*1088I agree with the petitioner’s argument that “previously” in § 1229b(e)(6) must refer to a previous proceeding, not something that happened only minutes earlier within the same proceeding. This conclusion is further supported by the fact that all the forms of relief that Congress included in § 1229b(c)(6) are listed in the past tense: “an alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 1254(a) of this title or who has been granted relief under [§ 212(c)].” Congress’s use of the past tense in the statute supports the argument that the term “previously” refers to a proceeding that occurred in the past, and not a proceeding currently before the agency.

Accordingly, I respectfully dissent. I would hold the BIA incorrectly held that 8 U.S.C. § 1229b(c)(6) barred Garcia-Jimenez from seeking cancellation of removal. I would grant the petition for review and remand this case to the BIA for consideration of Garcia-Jimenez’s petition for cancellation of removal on the merits.

. It appears from the record that there are many reasons why Garcia-Jimenez would not be eligible for cancellation of removal. However, as the BIA denied relief based on § 1229b(c)(6), we limit our review to that provision. Even if we overturn the BIA's decision based on that issue, it is unlikely that Garcia-Jimenez would ultimately obtain the relief he seeks. We are not concerned here with his general eligibility under the cancellation of removal statute. Instead, we are examining the effect of § 1229b(c)(6) where a petitioner simultaneously seeks relief under the pre-IIRIRA suspension of deportation rules and the post-IIRIRA cancellation of removal rules.