By Blake Stafford
In Hernandez v. Holder, a published opinion decided on April 14, 2015, the Fourth Circuit held that an alien’s petit larceny conviction constitutes a “crime of moral turpitude” for the purposes of rendering an alien ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). This section prohibits the cancellation of removal of an alien that has been convicted under one of three cross-referenced sections. In determining the alien’s ineligibility, the Board of Immigration Appeals (BIA) interpreted § 1229b(b)(1)(C) to only import the offenses listed in the three cross-referenced sections, and it does not require that the substantive operation of the cross-referenced section apply to the alien seeking cancellation of removal. The Fourth Circuit affirmed, concluding that the BIA’s reading of § 1229b(b)(1)(C) was a permissible interpretation of the statute, entitling its decision to Chevron deference.
Factual Background and Summary of Removal Proceedings
In 1997, Marina del Carmen Hernandez, a native and citizen of El Salvador, unlawfully entered the United States and has lived continuously in Virginia with her four children. In 2001, she was granted “temporary protected status” under 8 U.S.C. § 1254a, which protects eligible aliens from removal to certain countries depending on conditions in that country that would prevent the alien’s safe return.
In January 2007, Hernandez was convicted of petit larceny and sentenced to 30 days’ confinement in jail. The U.S. Citizenship and Immigration Services terminated her application to renew her temporary protected status, and, in March 2009, the U.S. Department of Homeland Security commenced removal proceedings against Hernandez under 8 U.S.C. § 1182(a)(6)(A)(i).
In March 2013, Hernandez applied for cancellation of removal under § 1229b(b)(1), alleging that her children would suffer hardship if she were not permitted to remain in the United States. The immigration judge pretermitted her application, holding that her petit larceny conviction rendered her ineligible for cancellation, and ordered that she be removed to El Salvador. On appeal, the BIA noted that the petit larceny conviction constituted a “crime of moral turpitude . . . for which a sentence of one year or longer may be imposed” under § 1227(a)(2). Because this offense is located in one of the three cross-referenced sections that renders an alien ineligible for cancellation of removal under § 1229b(b)(1)(C), Hernandez’s appeal was dismissed.
Eligibility for Cancellation of Removal
Under 8 U.S.C. § 1229b(b)(1), the Attorney General may cancel the removal of an inadmissible or deportable alien if four requirements are met, one of which requires that the alien “has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title . . . .” While each of these cross-referenced sections lists crimes for which an alien is either ineligible for admission to the United States or deportable, only § 1182(a)(2) contains a petit offense exception, providing that an alien is not rendered inadmissible for being convicted of a single crime that carries a maximum penalty of one year of imprisonment. See 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
In this case, BIA found that Hernandez’s petit larceny conviction was “a crime involving moral turpitude . . . for which a sentence of one year or longer may be imposed” under § 1227(a)(2)(A)(i), thus rendering her ineligible for cancellation of removal. Hernandez argued that the cross-references to § 1227(a)(2) and § 1227(a)(3) only apply to aliens who, unlike Hernandez, have been lawfully admitted to the United States. Therefore, only offenses under § 1182(a)(2) apply to her, and that the petit offense exception would thus preserve her eligibility for cancellation of removal. The court rejected Hernandez’s argument and affirmed the BIA’s interpretation upon considering the statutory construction of § 1229b(b)(1)(C), prior precedent, and Chevron deference to the BIA.
Fourth Circuit’s Statutory Construction
In evaluating the statutory construction of § 1229b(b)(1)(C), the Fourth Circuit noted that the three cross-referenced provisions within this section do not themselves criminalize behavior—they only list offenses that produce immigration consequences. Because these immigration consequences are not imported into § 1229b(b)(1)(C), the court concluded that only the offenses are imported from the cross-referenced provisions, not the substantive operation of the cross-referenced provisions. Accordingly, the court held that the most natural reading is that the conviction for any offense listed in § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3) renders an alien ineligible for cancellation of removal, regardless of the alien’s status as an admitted or unadmitted alien.
Prior Precedent: Cortez Canales
While this may not be the only possible reading of the statute, the court also noted that this interpretation is consistent with the construction of this statute previously adopted by the BIA in Matter of Cortez Canales, which determined that only language that specifically pertains to the criminal offense, such as the offense itself and the sentence imposed, should be considered for cancellation of removal eligibility under § 1229b(b)(1)(C). That is, the language in the three cross-referenced sections pertaining to immigration law should not be considered. Thus, in light of the the court’s own statutory construction analysis as well as the BIA’s prior interpretation of the statute in Cortez Canales, the Fourth Circuit found BIA’s interpretation in this case to be reasonable and therefore entitled to deference.
Chevron Deference
Hernandez also put forth several arguments against affording Chevron deference to the BIA, and the court rejected each of them in turn. First, the court noted that the BIA’s construction does not obliterate the language of the statute, dismissing textual arguments involving the § 1229b(b)(1)(C) phrase permitting cancellation of removal of “an alien who is inadmissible or deportable from the United States.” The court then noted that this interpretation does not lead to bizarre results, and it is not inconsistent with the BIA’s prior rulings. Finally, the court declined to apply the rule of lenity, noting that any ambiguity in the statute is not grievous such that the rule of lenity is applicable. In rejecting these arguments, the court ultimately found deference to the BIA’s construction to be appropriate.
Petition for Review Denied
Hernandez’s petit larceny conviction constitutes a “crime of moral turpitude” under one of the three cross-referenced provisions in § 1229b(b)(1)(C). Because the BIA interpreted § 1229b(b)(1)(C) to only import the offenses listed in the three cross-referenced provisions, regardless of the alien’s status as admitted or unadmitted, Hernandez’s conviction made her ineligible for cancellation of removal. The Fourth Circuit thus affirmed the decision of the BIA and denied Hernandez’s petition for review.
