United States 9th Circuit Court of Appeals Reports

GARCIA-JIMENEZ v. GONZALES, 03-74625 (9th Cir. 1-3-2007)
Attorney General, Respondent. No. 03-74625. United States
Court of Appeals, Ninth Circuit. Submitted December 7,
2006.[fn*] Filed January 3, 2007.

[fn*] This panel unanimously finds this case suitable for
decision without oral argument. See Fed.R.App.P. 34(a)(2).

On Petition for Review of an Order of the Board of
Immigration Appeals, Agency No. A93-143-043.

Noemi G. Ramirez, The Pacific Center, Los Angeles,
California, for the petitioner.

Peter D. Keisler, Terri J. Scadron, and Leslie McKay,
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C., for the

TALLMAN, Circuit Judges.

Opinion by Judge SILVERMAN


SILVERMAN, Circuit Judge:

The government charged petitioner Jose Garcia-Jimenez with
being removable on account of, first, two prior criminal
convictions occurring in the mid-1990s, and, second, a
recent attempt to smuggle undocumented aliens into the
country. Garcia-Jimenez’s criminal convictions occurred
before Congress replaced the Immigration and Nationality
Act’s waiver of deportation provisions with the more
stringent cancellation of removal provisions. Accordingly,
he was entitled to apply for, and did receive, a waiver as
to his convictions. The Immigration Judge, however, denied
relief as to the alien smuggling charge. She applied 8
U.S.C. § 1229b(c)(6), which precludes cancellation of
removal in cases where the alien has been granted a waiver
of deportation. We hold today that § 1229b(c)(6)
bars an alien from obtaining cancellation of removal if he
has ever received a waiver of deportation, even if the
waiver of deportation was granted in the same proceeding in
which cancellation of removal is sought. The statute
prohibits an alien from receiving both waiver of
deportation and cancellation of removal. Therefore, we deny
Garcia-Jimenez’s petition for review.


Garcia-Jimenez is a native and citizen of Mexico. He
obtained temporary resident status in November 1988, and
his status was adjusted to that of legal permanent resident
on December 1, 1990.

On June 8, 1995, Garcia-Jimenez pled guilty to corporal
injury of a spouse in violation of California Penal Code
§ 273.5(a). On March 27, 1996, he pled guilty to
possession of cocaine in violation of California Health &
Safety Code § 11350(a). On May 27, 2000,
Garcia-Jimenez came to the attention of the immigration
authorities when he attempted to smuggle his sister-in-law
and niece into the United States at the San Ysidro Port of

On June 15, 2000, the former Immigration and Naturalization
Service (“INS”) initiated removal proceedings against
Garcia-Jimenez under 8 U.S.C. § 1182(a)(2)(A)(i)(I)
& (II), charging him with removability on account of his
committing a crime of moral turpitude (i.e., the domestic
violence conviction) and a controlled substance violation.
On February 19, 2002, the INS also charged Garcia-Jimenez
with removability under § 1182(a)(6)(E)(i) arising
out of the smuggling incident on May 27, 2000.

Garcia-Jimenez conceded removability. Because he pled
guilty to both state charges before Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-597,
which abolished waiver of deportation under former §
212(c) of the Immigration and Nationality Act (codified at
8 U.S.C. § 1182(c) (repealed 1996)) and instituted
cancellation of removal, he was entitled to seek §
212(c) relief as to those charges. See INS v. St. Cyr, 533
U.S. 289, 326 (2001) (holding retroactive application of
the Act’s bar to former § 212(c) relief would have
an impermissible retroactive effect on certain lawful
permanent residents).[fn1] The alien smuggling incident,
however, occurred after IIRIRA’s enactment, so, to avoid
removal based on that charge, Garcia-Jimenez had to seek
cancellation of removal under 8 U.S.C. §
1229b(a).[fn2] The IJ denied cancellation of removal, and
ordered Garcia-Jimenez removed to Mexico.

The Board of Immigration Appeals (“BIA”) affirmed,
reasoning that § 1229b(c)(6) “explicitly states that
an alien is ineligible for cancellation of removal if he
has been granted relief under section 212(c),” and thus
“the Immigration Judge correctly found [Garcia-Jimenez] to
be ineligible for cancellation of removal because he was
granted relief under section 212(c) of the Act.”
Garcia-Jimenez filed this timely petition for review.


[1] The Immigration and Nationality Act ordinarily divests
the court of appeals of jurisdiction to review any “final
order of removal” against an alien who, like
Garcia-Jimenez, has been found removable for committing a
crime of moral turpitude or a controlled substance
violation. 8 U.S.C. § 1252(a)(2)(C). The Act,
however, states that “[n]othing [herein] . . . which limits
or eliminates judicial review shall be construed as
precluding review of constitutional claims or questions of
law raised upon a petition for review.” Id. §
1252(a)(2)(D). The issue that Garcia-Jimenez raises in his
petition is a question of law — whether §
1229b(c)(6) bars him from simultaneously obtaining both a
waiver of deportation under § 212(c) and
cancellation of removal under § 1229b(a). Therefore,
we have jurisdiction to review his petition.


[2] 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.

Latching onto the word “previously,” 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. Garcia-Jimenez misreads the statute.

[3] The plain language of the statute controls. See
Flores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993)
(applying the Act’s plain language; “[t]he provision is not
ambiguous, nor does its plain language lead to absurd
results or internal statutory inconsistencies.”). Section
1229b(c)(6) mentions three forms of relief —
cancellation of removal, suspension of deportation under
§ 1254, and waiver of deportation under the former
§ 212(c). Congress inserted the word “or” into
§ 1229b(c)(6) in such a way as to create three
different classes of aliens, each of which is the
beneficiary of one of those three forms of relief. And the
word “previously” appears in the part of the statute that
identifies the first class of aliens, but not the second or
third. See § 1229b(c)(6) (disqualifying “an alien
whose removal has previously been cancelled under this
section or . . . who has been granted relief under
[§ 212(c)]” (emphasis added)). We will not ignore
such a clear distinction in the statute. That is, with
respect to grants of § 212(c) relief, §
1229b(c)(6)’s bar on further relief does not depend on when
the alien received his waiver; it is sufficient if a waiver
of deportation “has been granted.”[fn3] §
1229b(c)(6). Indeed, we said as much in Maldonado-Galindo
v. Gonzales, 456 F.3d 1064, 1067 (9th Cir. 2006):

The statute is not ambiguous. Congress’s language
indicates as clearly as words can state that any receipt
of § 212(c) relief will foreclose [§
1229b(c)(6)] relief: cancellation of removal is
unavailable to ‘[a]n alien whose removal has previously
been cancelled under this section . . . or who has been
granted relief under [§ 212(c)]. . . .’

Id.[fn4] It is irrelevant that an alien may simultaneously
apply for adjustment of status and § 212(c) relief.

The Eighth Circuit has come to the same conclusion. In
Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006), the
petitioner argued that his procedural due process rights
were violated when the immigration judge ruled that
§ 1229b(c)(6) barred him from simultaneously
obtaining § 212(c) relief and cancellation of
removal. Id. at 350. The court held that “Congress intended
to deny [cancellation of removal] to aliens who commit
multiple deportable offenses. Therefore, it does not matter
when the discretionary § 212(c) relief is granted; it
disqualifies the alien from [§ 1229b] relief for a
second, post-IIRIRA offense.” Id.

[4] By enacting § 1229b(c)(6), Congress made its
intention clear: an alien who has received § 212(c)
relief — at any time — cannot also receive
§ 1229b relief. Garcia-Jimenez was eligible for one
form of relief or the other, but not both.


[5] The BIA correctly held that 8 U.S.C. §
1229b(c)(6) barred Garcia-Jimenez from seeking cancellation
of removal. The petition for review is DENIED.

[fn1] The Board of Immigration Appeals construed §
212(c) to afford permanent resident aliens a discretionary
waiver of deportation if they had lived in the country for
seven consecutive years and had not been convicted of an
aggravated felony.

[fn2] Cancellation of removal is available to an alien who
has been a lawful permanent resident for at least five
years, has resided continuously in the country for seven
years, and has no conviction for an expanded universe of
aggravated felonies. 8 U.S.C. § 1229b(a). The IJ
determined that Garcia-Jimenez was not eligible for
cancellation of removal as to his second conviction because
his first conviction in 1995 for spousal abuse constituted
a crime of moral turpitude, triggering IIRIRA’s new
“stop-time” provision and ending his run of “continuous
physical presence” in the United States. See §
1229b(d)(1) (“any period of continuous physical presence .
. . end[s] when the alien has committed an offense referred
to in section 1182(a)(2) of this title that renders the
alien inadmissible”). Thus, when he was convicted for a
controlled substance violation in 1996, Garcia-Jimenez could
no longer meet the seven-year residency requirement.

[fn3] We offer no opinion as to what “previously” means with
respect to aliens who initially received cancellation of

[fn4] At issue in Maldonado-Galindo was whether §
1229b(c)(6) bars cancellation of removal for those aliens
granted § 212(c) relief before IIRIRA’s enactment.
We held that, even if Congress did not “clearly indicate”
in the statute that cancellation of removal is unavailable
to an alien who received § 212(c) relief before
IIRIRA’s enactment, § 1229b(c)(6) does not have an
impermissible retroactive effect. Id. at 1068.