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Hernandez v. Holder

United States Court of Appeals, Fourth Circuit

April 14, 2015

MARINA HERNANDEZ, a/k/a Marina Hernandez Hernandez, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued: January 29, 2015.

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Ofelia Lee Calderon, Anam Rahman, CALDERÓ N SEGUIN PLC, Fairfax, Virginia, for Petitioner.

Monica G. Antoun, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Stuart F. Delery, Assistant Attorney General, Shelley R. Goad, Assistant Director, Nancy K. Canter, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges. Judge Niemeyer wrote the opinion, in which Chief Judge Traxler and Judge Motz joined.

OPINION

Page 190

NIEMEYER, Circuit Judge:

The Board of Immigration Appeals (" BIA" ) denied the application of Marina del Carmen Hernandez, a native and citizen of El Salvador, for cancellation of removal under 8 U.S.C. § 1229b(b)(1) because Hernandez had committed a " crime involving moral turpitude" -- a petit-larceny offense -- that rendered her ineligible for such relief. See 8 U.S.C. § 1229b(b)(1)(C) (prohibiting the Attorney General from canceling the removal of an alien who has " been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)" ); id. § 1227(a)(2)(A)(i) (listing as an offense " a crime involving moral turpitude . . . for which a sentence of one year or longer may be imposed" ). Hernandez argued that the cross-reference in § 1229b(b)(1)(C) to § 1227(a)(2) did not apply to her because § 1227(a)(2) makes deportable only persons " in and admitted to the United States," and Hernandez had never been lawfully admitted. Rather, she maintained that only the cross-reference to § 1182(a)(2) applied and that that section rendered her prior crime irrelevant because it contained a " petit-offense exception." The BIA rejected this argument, relying on its precedential decision in Matter of Cortez Canales, 25 I. & N. Dec. 301, 306-08 (2010), which read § 1229b(b)(1)(C) to cross-reference only the offenses listed in the three cross-referenced sections, not the substantive operation of those offenses. Thus, even though the substantive operation of § 1227(a)(2) did not apply to Hernandez, the offense listed in § 1227(a)(2)

Page 191

did apply, and that provision contains no petit-offense exception.

We conclude that the BIA's reading of ยง 1229b(b)(1)(C) is the most logical reading and therefore is, at least, a permissible interpretation of the statute, entitling the BIA's decision to Chevron deference. Thus, ...


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