HERNANDEZ v. HOLDER, NO. 14-1148

Decided: April 14, 2015

The Fourth Circuit held that 8 U.S.C. § 1229b(b)(1)(C) applies to both legal aliens and illegal aliens, and renders both ineligible for cancellation of removal from the United States when they have committed a crime of moral turpitude which falls under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or § 1227 (a)(3), even if the crime committed would otherwise fall under a petit-offense exception within those statutes.  The Fourth Circuit thus upheld the Board of Immigration Appeals’s (“BIA”) denial of Marina Hernandez’s application for cancellation of removal from the United States.  

Hernandez, a native and citizen of El Salvador, entered the United States illegally around 1997, and has lived in Virginia since then with her four U.S. citizen children.  In 2001, Hernandez was given temporary protected status, which prevented her removal to El Salvador on the basis that return there would be unsafe.  In January, 2007, Hernandez was convicted of petit-larceny under Virginia statute, and was sentenced to 30 days in jail.  When she did not respond to a request for documentation concerning her criminal record, U.S. Citizenship and Immigration Services terminated her application for renewal of her protected status.  In March, 2009, the U.S. Department of Homeland Security brought removal proceedings against Hernandez, who they argued was in the United States illegally.  Hernandez conceded that she was removable, but filed an application for cancellation of removal under 8 U.S.C. § 1229b(b)(1), arguing that her removal would be a hardship on her children.  The immigration judge pretermitted the application, finding that the petit-larceny conviction made Hernandez ineligible for cancellation of removal, and ordered Hernandez returned to El Salvador.  Hernandez appealed to the BIA.  The BIA dismissed her appeal, finding that Hernandez had conceded that petit-larceny was a crime of moral turpitude under 8 U.S.C. § 1227(a)(2), and finding that that the petit-offense exception to 8 U.S.C. § 1182(a)(2) did not apply to offenses described in 8 U.S.C. § 1227(a)(2), and that the offenses described in 8 U.S.C. §§ 1227(a)(2) and 1227(a)(3) applied to both legal and illegal aliens, including Hernandez.  Hernandez appealed to the Fourth Circuit.  

The Fourth Circuit first found that the BIA’s decision in this case, and in its prior case of Matter of Cortez Canales, 25 I. & N. Dec. 301 (2010), 2010 WL 3250517, were entitled to Chevron deference.  In Cortez Canales, which the BIA relied on in deciding this case, the BIA found that 8 U.S.C. § 1229b(b)(1)(C) cross-referenced only the offenses listed in 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), and 1227(a)(3), not the substantive operation of the offenses.  Thus, the BIA held in this case that because Hernandez committed the type of crime listed in 8 U.S.C. §1227 (a)(2), she was ineligible for cancellation of removal, even though substantively, the section did not apply to her, because it refers to aliens lawfully admitted, which Hernandez was not.  The BIA further found that 8 U.S.C. §1227 (a)(2) did not allow for a petit-offense exception.  The Fourth Circuit found that, while the BIA’s decision in this case was rendered by a single person, the BIA’s Cortez Canales decision, on which the instant decision relied, was rendered by a three judge panel, and thus both decisions were due Chevron deference, since both involved statutory construction by the agency charged with applying the statute.  The Fourth Circuit then found, based on statutory language, that both unadmitted, and admitted but deportable, aliens can be ineligible for cancellation of removal for committing a crime of moral turpitude.  The court  argued that while its reading of 8 U.S.C. § 1229b(b)(1)(C) might not be the only reasonable reading, it was consistent with the BIA’s analysis in Cortez-Canales, which was due Chevron deference.  On this basis, the Fourth Circuit upheld the BIA’s denial of Hernandez’s appeal, and denied her petition for review.

Full Opinion

Katherine H. Flynn

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