Submitted November 18, 2016 [*] San Francisco, California
for Review of a Decision of the Board of Immigration Appeals
Agency No. A090-638-308
L. Reszko, Rez Athari & Associates, Las Vegas, Nevada,
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.
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.
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.
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
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.
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 ...