FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL PADILLA-ROMERO, JR.,
Petitioner, No. 07-72492
v.
Agency No.
A037-803-555
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 3, 2010—Pasadena, California
Filed July 9, 2010
Before: Betty B. Fletcher and Richard A. Paez, Circuit
Judges, and Donald E. Walter, Senior District Judge.*
Per Curiam Opinion
*The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
9897
PADILLA-ROMERO v. HOLDER 9899
COUNSEL
John Richard Smith, San Diego, California, for the petitioner.
Monica G. Antoun, U.S. Department of Justice, Civil Divi-
sion, Washington, D.C., for the respondent.
OPINION
PER CURIAM:
Rafael Padilla-Romero, Jr., petitions for review of the
Board of Immigration Appeals (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) decision holding him statutorily
ineligible for cancellation of removal. We deny the petition
for review.
9900 PADILLA-ROMERO v. HOLDER
FACTS AND PROCEDURAL HISTORY
After being caught on three separate occasions in early
1998 attempting to smuggle aliens into the United States and
at least twice falsely claiming to be a United States citizen
while doing so, Padilla-Romero was removed to Mexico. It is
undisputed that at the time he was removed Padilla-Romero
was a lawful permanent resident (“LPR”) of the United States
and met the statutory requirements for cancellation of removal
under 8 U.S.C. § 1229b(a). It is likewise undisputed that he
elected not to pursue this remedy and that the first removal
terminated his status as an LPR. Subsequently, Padilla-
Romero illegally reentered or attempted to illegally reenter
the United States no fewer than five times, again repeatedly
lying about his citizenship.
At his most recent removal hearing on March 16, 2006,
Padilla-Romero asserted for the first time that he was still eli-
gible for cancellation of removal under 8 U.S.C. § 1229b(a).
He argued that, having met in 1998 § 1229b(a)(1)’s require-
ment that he hold LPR status for at least five years, he
remained eligible for cancellation of removal notwithstanding
his loss of LPR status eight years before the 2006 merits hear-
ing. The IJ held that Padilla-Romero was ineligible for cancel-
lation of removal because § 1229b(a) is available only to an
alien with current LPR status, and ordered him removed. The
BIA affirmed without opinion.
DISCUSSION
Where the BIA affirms an IJ’s decision without opinion,
this court reviews the IJ’s decision as though it were the
BIA’s. De Mercado v. Mukasey, 566 F.3d 810, 814 n.1 (9th
Cir. 2009). We review questions of law de novo. Padash v.
INS, 358 F.3d 1161, 1168 (9th Cir. 2004).
PADILLA-ROMERO v. HOLDER 9901
I. INTERPRETATION OF “HAS BEEN” IN
§ 1229b(a)(1)
[1] 8 U.S.C. § 1229b(a) reads, in full:
(a) Cancellation of removal for certain permanent
residents. The Attorney General may cancel removal
in the case of an alien who is inadmissible or deport-
able from the United States if the alien—(1) has
been an alien lawfully admitted for permanent resi-
dence for not less than 5 years, (2) has resided in the
United States continuously for 7 years after having
been admitted in any status, and (3) has not been
convicted of any aggravated felony.
“The term ‘lawfully admitted for permanent residence’ means
the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed.” 8 U.S.C. § 1101(a)(20) (emphasis added). We are
faced with the question of whether an alien in removal pro-
ceedings who at one time was an LPR and held that status for
at least five years but who has since lost that status remains
eligible for cancellation of removal under § 1229b(a).
Although the statute is somewhat ambiguous, we hold that
such an alien is not eligible for § 1229b(a) relief.
Padilla-Romero asserts that there is an ambiguity as to
whether an alien must currently possess LPR status to be eli-
gible for relief due to § 1229b(a)(1)’s use of the verb tense
“has been.” As a purely grammatical matter, the use of the
present perfect tense “has been,” read in isolation from the
surrounding text of the statute, can connote either an event
occurring at an indefinite past time (“she has been to Rome”)
or continuing to the present (“she has been here for five
hours”). See, e.g., Wells, Waters & Gases, Inc. v. Air Prods.
& Chems., Inc., 19 F.3d 157, 163 (4th Cir. 1994) (noting the
ambiguity of the present perfect tense); Bryan A. Garner, Gar-
9902 PADILLA-ROMERO v. HOLDER
ner’s Modern American Usage 802-03 (3d ed. 2009). Padilla-
Romero urges that we interpret “has been” to mean that an
alien is eligible for relief under § 1229b(a) if that alien has,
at any indefinite past time, held LPR status for five years. In
interpreting the statute, however, our task is to discern con-
gressional intent. To perform that task, we do not consider
“has been” in isolation from its context. See Padash, 358 F.3d
at 1168, 1170-71.
[2] Looking at § 1229b(a)(1) as a whole, Padilla-Romero’s
proposed interpretation is a strained reading of this provision.
Under the natural reading, the text requires that an alien
applying for cancellation of removal under § 1229b(a) have
current LPR status. The definition of “lawfully admitted for
permanent residence,” which requires that the alien’s status
“not hav[e] changed,” provides strong support for this read-
ing. 8 U.S.C. § 1101(a)(20). An interpretation of
§ 1229b(a)(1) that allowed aliens who are no longer LPRs to
obtain cancellation of removal would be counter to Con-
gress’s intent, as expressed in § 1101(a)(20), that an alien may
lose the benefits of LPR status. The caption to § 1229b(a),
“Cancellation of removal for certain permanent residents”
also suggests a requirement that the alien have current status
as an LPR. See Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir.
2007) (“Although statutory titles are not part of the legisla-
tion, they may be instructive in putting the statute in con-
text.”).
[3] Padilla-Romero argues that this interpretation will lead
to an absurd result when considered along with § 1229b(a)(2)
and § 1229b(d). Under § 1229b(a)(2), an alien is eligible for
cancellation of removal only if he “has resided in the United
States continuously for 7 years after having been admitted in
any status.” Padilla-Romero argues that because
§ 1229b(a)(1) and (2) both use the present perfect tense, they
must be interpreted similarly. Therefore, he argues, if “has
been an alien lawfully admitted for permanent residence”
requires that an alien have current LPR status when applying
PADILLA-ROMERO v. HOLDER 9903
for cancellation of removal, “has resided in the United States
continuously” under § 1229b(a)(2) must similarly require that
the alien currently reside in the United States when applying
for relief. Under § 1229b(d), however, an alien’s period of
continuous residence in the United States terminates when the
alien is served with a notice to appear or commits an offense
rendering him or her removable or inadmissable. Accord-
ingly, Padilla-Romero argues, no alien could ever establish
that his residence has continued until the time of his applica-
tion for relief—which necessarily comes some time after the
notice to appear or the criminal offense that terminates the
period of continuous residence—and therefore no alien could
meet § 1229b(a)(2)’s requirement.
[4] Padilla-Romero, however, misapprehends the stop-time
provision in § 1229b(d). That provision does not terminate an
alien’s actual residence, but rather simply establishes the
point at which an alien’s residence in the United States will
stop counting toward § 1229b(a)(2)’s 7-year continuous resi-
dence requirement. Indeed, we need look no further than
§ 1229b(b)(1)(A) to see the fallacy of Padilla-Romero’s argu-
ment: If his reading of § 1229b(d) were correct, then
§ 1229b(b)(1)(A) would involve exactly the absurd result he
challenges. That section authorizes relief only if an alien “has
been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the
date of [his] application,” but § 1229b(d) provides that a “pe-
riod of . . . continuous physical presence in the United States
shall be deemed to end” when the alien receives a notice to
appear or commits an offense rendering him removable or
inadmissible. Thus, under Padilla-Romero’s reading of
§ 1229b(d), no alien could ever be physically present “imme-
diately preceding” the date of his application for relief. We
conclude that the stop-time rule cannot have the meaning
Padilla-Romero asserts and thus that no absurdity results from
our interpretation of § 1229b(a)(1). Rather, it is Padilla-
Romero’s interpretation, which would both encourage illegal
reentry and allow aliens who have lost LPR status decades
9904 PADILLA-ROMERO v. HOLDER
ago to regain that status merely by crossing the border, that
would produce absurd results.
[5] In light of the foregoing, the inclusion in
§ 1229b(b)(1)(A) of an express requirement that an alien’s
period of continuous physical presence be “immediately pre-
ceding” the application for cancellation of removal does not
undermine our interpretation of § 1229b(a)(1). Section
1229b(a)(1), when read as a whole and in the context of the
definition of “lawfully admitted for permanent residence,” is
sufficiently clear that such additional text would be superflu-
ous.1 The legislative history of § 1229b(a) also supports this
conclusion. In Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,
1027-28 (9th Cir. 2005), we explained that Congress enacted
the current § 1229b(a) to resolve a circuit split as to when
time began to accrue for purposes of cancellation of removal.
There is no suggestion that Congress intended to remove the
requirement in former Immigration and Nationality Act
§ 212(c), which the text of current § 1229b(a) replaced, that
an alien applying for cancellation currently have the status of
an LPR. Cf. Cuevas-Gaspar, 430 F.3d at 1028 (concluding
that Congress’s intent was to resolve this circuit split and
rejecting the BIA’s argument that it intended a substantive
change on an unrelated issue).
II. THE BOARD’S PROCEDURE TO AFFIRM
WITHOUT OPINION
Padilla-Romero argues that the BIA’s decision to affirm
without opinion in this case was a violation of the BIA’s regu-
lations, and thus violated due process and the APA. Since we
decide his claim on the merits, this argument has no force. See
Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.
2003) (“The decision to streamline [is] indistinguishable from
the merits.”).
PETITION DENIED.
1
Padilla-Romero concedes that the context of a statute can render such
explicit text unnecessary.