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Guerrero-Roque v. Lynch

United States Court of Appeals, Ninth Circuit

January 9, 2017

Francisco Guerrero-Roque, Petitioner,
v.
Loretta E. Lynch, U.S. Attorney General, Respondent.

          Submitted November 18, 2016 [*] San Francisco, California

         Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A090-638-308

          Seth L. Reszko, Rez Athari & Associates, Las Vegas, Nevada, for Petitioner.

          Tiffany L. Walters, Trial Attorney; Jesse M. Bless, Senior Litigation Counsel; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Alex Kozinski, Ronald Lee Gilman, [**] and Michelle T. Friedland, Circuit Judges.

         SUMMARY [***]

         Immigration

         The panel denied Francisco Guerrero-Roque's petition for review of the Board of Immigration Appeals' decision finding him ineligible for cancellation of removal because he was convicted of several crimes involving either moral turpitude or a controlled substance.

         The panel held that the waiver of inadmissibility authority provided in INA § 212(h) cannot excuse convictions that bar an alien from cancellation relief under INA § 240A(b). The panel also noted that Guerrero was found inadmissible not on the grounds of his convictions but because he entered without inspection, and that the § 212(h) waiver provision consequently could not apply to his inadmissibility finding. The panel also held that Guerrero's shoplifting convictions preclude him from seeking cancellation, and declined to reach his argument that treating his possession of marijuana conviction as a bar to cancellation is arbitrary and capricious.

          OPINION

          PER CURIAM.

         Francisco Guerrero-Roque is a native and citizen of Mexico. After he illegally entered the United States in 1980 and was deported in 1985, he returned to the United States without permission in 2003. An Immigration Judge (IJ) later determined that Guerrero was inadmissible because he had been neither admitted nor paroled into the United States, and that he was consequently subject to removal. During the pendency of his removal proceedings, Guerrero filed an application for cancellation of removal. He was deemed ineligible for such relief because he had been convicted of several crimes in the state of Washington involving either moral turpitude or a controlled substance.

         Guerrero argues that he was improperly denied the opportunity to seek cancellation of removal. For the reasons set forth below, we deny Guerrero's petition for review.

         I.

         Two weeks after Guerrero reentered the United States without permission in 2003, the Immigration and Naturalization Service (INS) charged Guerrero with being removable as an alien present in the country without having been either admitted or paroled. See Immigration and Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). An IJ found that Guerrero ...


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