In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4135
R AJENDRA B ARMA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A089-622-822
A RGUED S EPTEMBER 20, 2010—D ECIDED A PRIL 5, 2011
Before E ASTERBROOK , Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Petitioner Rajendra Barma
was admitted as a visitor to the United States from
Canada, with authorization to remain in the United
States for six months. He overstayed his visa and con-
tinued to reside in the United States for more than half
of his life. During that time, he was convicted of a
2 No. 09-4135
number of crimes under Wisconsin state law. In Octo-
ber 1994, he was convicted of possession of drug para-
phernalia. Two years later, he was convicted of criminal
damage to property in La Crosse County Circuit Court
in La Crosse, Wisconsin, and in 2007 he was again con-
victed of criminal damage to property concerning the
same 1996 incident, this time in Dane County Circuit
Court in Madison, Wisconsin. Finally, in 2008 he was
convicted of two more offenses: lewd and lascivious
behavior-exposure, and theft of movable property less
than or equal to $2500. He does not contest the validity
of those Wisconsin state law convictions.
On March 26, 2009, the Department of Homeland Secu-
rity (DHS) served Barma with a Notice to Appear,
charging him with being subject to removal under three
independent grounds: (1) as an alien present in the
United States who unlawfully remained longer than
permitted, 8 U.S.C. § 1227(a)(1)(B); (2) as an alien con-
victed of two or more crimes involving moral turpitude,
8 U.S.C. § 1227(a)(2)(A)(ii); and (3) as an alien convicted
of an offense relating to a controlled substance, other
than a single offense involving possession for one’s
own use of 30 grams or less of marijuana, 8 U.S.C.
§ 1227(a)(2)(B)(I).
Barma admitted that he was subject to removal for
remaining in the United States longer than permitted as
a visitor, but denied that the other grounds of removal
applied to him. He maintained that his convictions
were not for crimes involving moral turpitude. In addi-
tion, he argued that his conviction for possession of
No. 09-4135 3
drug paraphernalia could not be a ground of removal
because it was equivalent to a conviction for possession
of 30 grams or less of marijuana for personal use, which
is exempted as a ground of removal. As support for
that argument, Barma pointed to our decision in Escobar
Barraza v. Mukasey, 519 F.3d 388, 392 (7th Cir. 2008), which
held that paraphernalia designed for use with personal-
possession quantities of marijuana relates to the drug,
and the implied quantity is under 30 grams, thus
falling within the same provision as possession of under
30 grams of the drug itself.
The Immigration Judge (IJ) found that Barma was
subject to removal on the two grounds: (1) that he re-
mained in the United States longer than permitted as a
visitor, and (2) that he was convicted of an offense re-
lating to a controlled substance other than possession
of marijuana of less than 30 grams. The IJ held that Barma
was not removable under 8 U.S.C. § 1227(a)(2)(A)(ii)
because, although the IJ viewed the theft conviction as
a crime involving moral turpitude, the IJ held that
the convictions for lewd and lascivious behavior, crim-
inal damage to property, and possession of drug para-
phernalia were not crimes involving moral turpitude.
The IJ then addressed Barma’s request for relief in the
form of cancellation of removal under 8 U.S.C. § 1229b. In
order to be eligible for cancellation of removal, Barma
must demonstrate: (1) that he has been physically
present in the United States for a continuous period of
at least 10 years immediately preceding the applica-
tion date; (2) that he has been a person of good moral
4 No. 09-4135
character during that time; (3) that he has not been
convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2),
or 1227(a)(3), subject to paragraph 5; and (4) that removal
would result in exceptional and extremely unusual hard-
ship to his parents, spouse, or children who are citizens
or permanent residents. 8 U.S.C. § 1229b(b)(11). The IJ
held that Barma failed to meet the third prong of that
test. The IJ held that Barma’s conviction for theft was
an offense under 8 U.S.C. § 1182(a)(2) and therefore
rendered him ineligible for cancellation of removal. The
IJ further stated that Barma’s conviction for drug para-
phernalia arguably would render him ineligible as an
offense under §1182(a)(2) as well.
The Board of Immigration Appeals (BIA) upheld the
determination, albeit on different reasoning. Rather
than address the theft conviction, the BIA rested its
decision on Barma’s conviction for possession of drug
paraphernalia. The BIA held that the drug paraphernalia
conviction was a conviction under § 1182(a)(2)(A), which
includes any conviction “relating to a controlled sub-
stance.” Accordingly, the BIA held that Barma did not
qualify for cancellation of removal because he was con-
victed of an offense under § 1182(a)(2). Although
Barma argued that he should be allowed to waive that
disqualifying offense under § 1182(h), the BIA rejected
that contention because the cancellation of removal
statute did not incorporate the § 1182(h) waiver.
Barma now appeals those decisions to this court. Where,
as here, the BIA agrees with the IJ’s decision but sup-
plements that decision with its own explanation for
rejecting the appeal, we review the IJ’s decision as sup-
No. 09-4135 5
plemented by the BIA’s reasoning. Juarez v. Holder, 599
F.3d 560, 564 (7th Cir. 2010).
Barma argues on appeal that the IJ erred in holding
that the drug paraphernalia conviction rendered him
removable under 8 U.S.C. § 1227(a)(2)(B)(I). We need not
address that contention, however, because Barma does
not contest that he is removable under a different provi-
sion. Barma concedes that he unlawfully remained in
this country longer than permitted and therefore was
removable under 8 U.S.C. § 1227(a)(1)(B). The only
issue for this appeal, then, is whether the IJ and the
BIA erred in determining that he was not eligible for
cancellation of removal.
Barma contends that neither the theft nor the drug
paraphernalia conviction should prevent him from ob-
taining cancellation of removal under 8 U.S.C.
§ 1229b(b)(1)(C). In relevant part, that statute provides
that the Attorney General may cancel removal if the alien:
(A) has been physically present in the United States
for a continuous period of not less than 10 years
immediately preceding the date of such application;
(B) has been a person of good moral character during
such period;
(C) has not been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject
to paragraph (5) [a domestic violence waiver]; and
(D) establishes that removal would result in excep-
tional and extremely unusual hardship to the alien’s
spouse, parent, or child, who is a citizen of the United
6 No. 09-4135
States or an alien lawfully admitted for permanent
residence.
8 U.S.C. § 1229b(b)(1).
In ascertaining the meaning of a statute, we begin
with the plain language. Negusie v. Holder, ___ U.S. ___,
129 S.Ct. 1159, 1178 (2009); Lamie v. U.S. Trustee, 540
U.S. 526, 534 (2004). The plain language of § 1229b(b)(1)(C)
renders Barma ineligible for cancellation of removal.
Section 1229b(b)(1)(C) states that cancellation is avail-
able only if an alien “has not been convicted of an
offense under section 1182(a)(2). . . .” Turning to
§ 1182(a)(2), it is captioned “Conviction of certain crimes”
and includes a crime involving moral turpitude,
§ 1182(a)(2)(A)(i)(I), and “a violation of (or conspiracy
or attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a con-
trolled substance . . . .” Barma’s conviction for posses-
sion of drug paraphernalia is a violation of a law
“relating to a controlled substance.” Accordingly, Barma
is ineligible for cancellation of removal based upon
that conviction.
Barma attempts to avoid the impact of that plain lan-
guage by arguing that we should not limit our consid-
eration to § 1182(a)(2), but should also look to subsec-
tion (h) of § 1182 which provides that the Attorney
General may, in his discretion, waive the application of
§ 1182(a)(2) “insofar as it relates to a single offense of
simple possession of 30 grams or less of marijuana . . . .”
Barma reasons that his drug paraphernalia conviction
is comparable to an offense for simple possession of
No. 09-4135 7
30 grams or less of marijuana, and therefore potentially
subject to that waiver by the Attorney General. See
Barraza, 519 F.3d at 392 (holding that offense for pos-
session of drug paraphernalia designed for use with
personal-possession quantities of marijuana is an offense
relating to possession of 30 grams or less of marijuana
under statute). He concludes that he should have been
allowed to seek such a waiver, and if he obtained it,
then the conviction would not fall within § 1182 and
therefore would not operate to bar cancellation of removal.
With the array of statutory sections involved, some
context may be helpful. Section 1182 addresses the issue
of inadmissibility, which concerns whether aliens out-
side of the United States are allowed to enter. Section
1182(a) specifies classes of aliens ineligible for visas
or admission, and its subsection 1182(a)(2) sets forth
criminal grounds for inadmissibility, including crimes of
moral turpitude and violations relating to a controlled
substance. Section 1182(h) grants the Attorney General
the discretion to waive the applicability of that statute
insofar as it relates to a single offense of simple posses-
sion of 30 grams or less of marijuana. The intersection
with the cancellation of removal provision here comes
from the reference to offenses under § 1182(a)(2) in the
cancellation of removal provision. Barma argues that in
referencing § 1182, the cancellation of removal provi-
sion requires consideration of all of § 1182, including
the waiver provision in § 1182(h).
The problem with that argument is that the cancella-
tion of removal provision does not reference § 1182 as a
8 No. 09-4135
whole, but rather references one distinct subsection,
§ 1182(a)(2). Nothing in that subsection incorporates the
waiver provision in § 1182(h). There is no reason to
believe that other provisions of the inadmissibility statu-
tory provision were incorporated into the cancellation
of removal provision, and such an interpretation is in-
consistent with a plain language reading.
As support for his position, Barma points to the BIA’s
decision in Matter of Garcia-Hernandez, 23 I. & N. Dec. 590
(BIA 2003). In Garcia-Hernandez, the BIA held that the
conviction for a crime of moral turpitude did not bar
cancellation under § 1229b(b)(1)(C) because it fell within
§ 1182(a)(2)(A)(ii)’s petty offense exception. Id. at 593.
Barma argues that the petty offense exception contains
nearly identical language to the waiver in § 1182(h), and
therefore there is “no reason” to treat the provisions
differently. That ignores the obvious—and control-
ling—reason, which is that the petty offense exception is
in § 1182(a)(2), which is the provision that § 1229b refer-
ences, and § 1182(h) is not similarly referenced. In fact,
the language of § 1182(a)(2) makes clear that the petty
offense exception must be considered in determining
which conduct counts as a relevant conviction:
§ 1182(a)
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien con-
victed of, or who admits having committed, or
No. 09-4135 9
who admits committing acts which constitute
the essential elements of—
(I) a crime involving moral turpitude . . . or
(II) a violation of . . . any law or reg-
ulation . . . relating to a controlled sub-
stance
is inadmissible.
(ii) Exception . . . [petty offense exception].
Under the statute as structured, in determining whether
a conviction falls under § 1182(a)(2) the petty offense
exception contained within that provision must be con-
sidered. 23 I. & N. Dec. at 593. The same is not true for
the waiver in § 1182(h). Nothing in §1182(a)(2) requires
reference to § 1182(h) in determining whether a convic-
tion falls within § 1182(a)(2). Accordingly, Garcia-
Hernandez provides no support for Barma’s interpreta-
tion, and reflects merely a determination as to what
convictions fall under the language of § 1182(a)(2). Garcia-
Hernandez in fact is consistent with our holding that
the plain language requires the court to focus on the
language of the particular subsection referenced. Id. (“We
view the plain language . . . as incorporating the
entirety of section [1182(a)(2)]”).
The only other support Barma provides for his position
is an unpublished decision by the Ninth Circuit, Zamora-
Rios v. Gonzales, 242 Fed. Appx. 394, 2007 WL 1482402 (9th
Cir. 2007), in which the court held that the ineligibility
for cancellation of removal based on the crime of
moral turpitude could be cured by a waiver under
10 No. 09-4135
§ 1182(h). Subsequent cases in that circuit, however,
distinguish the inadmissibility determination from that
of removal, and caution that the plain language of the
statutes must control. For instance, in Sanchez v. Holder,
560 F.3d 1028, 1032 (9th Cir. 2009), the court sitting en
banc held that a family unity waiver available under
§ 1182(d) in determining whether an alien is inadmis-
sible would not apply in the context of cancellation of
removal. As is true here, the plain language of the
statute in Sanchez did not incorporate the waiver, and
the court rejected the argument that the waiver should
apply for cancellation of removal as it does for the inad-
missibility determination. Id. The court held that “[a]
statute giving the Attorney General discretion to grant
relief from inadmissibility does not give the Attorney
General discretion to grant relief from removal.” (emphasis
in original) Id. See also Gonzalez-Gonzalez v. Ashcroft, 390
F.3d 649, 652 (9th Cir. 2004) (“plain language of § 1229b
indicates that it should be read to cross-reference a list
of offenses in three statutes, rather than the statutes as
a whole.”) We agree with those cases that the plain lan-
guage governs and that the reference to the statutory
subsection does not incorporate the statute as a whole,
and therefore decline to follow the reasoning of Zamora-
Rios, which would include consideration of the waiver in
§ 1182(h).
The phrase “an offense under section 1182(a)(2)”
means just what it says, which is to include any
offenses that are set forth under § 1182(a)(2), including
any offense relating to a controlled substance, and does
not include the waiver in § 1182(h) which applies to the
No. 09-4135 11
inadmissibility determination. Because the conviction
for possession of drug paraphernalia is for a violation of
law “relating to a controlled substance,” Barma is
ineligible for cancellation of removal. Accordingly, the
petition for review is D ENIED.
4-5-11