     Case: 13-60554    Document: 00512732931     Page: 1   Date Filed: 08/13/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 13-60554
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
ADALBERTO RODRIGUEZ-BENITEZ,                                     August 13, 2014
                                                                  Lyle W. Cayce
                                            Petitioner                 Clerk
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                            Respondent




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


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Adalberto Rodriguez-Benitez appeals the Board of Immigration Appeals’
(“BIA”) decision affirming the denial of his application for cancellation of
removal for victims of domestic violence. The Immigration Judge (“IJ”) found
Rodriguez-Benitez ineligible for relief due to a prior narcotics conviction.
Rodriguez-Benitez claims the narcotics conviction cannot be grounds for
finding him “inadmissible,” and therefore ineligible for relief, because the
government did not charge that conviction in his Notice to Appear (“NTA”). He
also argues the BIA erred in holding that the Attorney General’s authority to
waive convictions in this context is limited to domestic violence and stalking
convictions. We dismiss his petition for review.
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                                         No. 13-60554
                                              I.
      Rodriguez-Benitez was born in Mexico. During his childhood there, he
was subjected to extremely violent physical abuse at the hands of his father,
who had United States Legal Permanent Resident status. In approximately
1995 at age fifteen, Rodriguez-Benitez immigrated without being admitted to
the United States, where he has four United States citizen children. He has
been arrested three times. The first two occasions involved domestic violence-
related incidents; the first was dismissed and the second resulted in a
Judgment of Community Supervision for eighteen months. His third arrest
resulted in a conviction for possession of less than two ounces of marijuana.
After this arrest, Rodriguez-Benitez was detained by United States
Immigration and Customs Enforcement and issued an NTA that charged him
as an alien present in the United States without having been admitted or
paroled   pursuant      to    the   Immigration     and     Nationality    Act   (“INA”)
§ 212(a)(6)(A)(i). 1 The NTA did not charge him with inadmissibility based on
his conviction for possession of marijuana. He admitted the factual allegations
in the NTA and conceded removability, but applied for relief in the form of
Special Rule Cancellation of Removal for victims of domestic violence under
INA § 240A(b)(2). 2
      The IJ denied Rodriguez-Benitez’s application for relief on January 25,
2011. The IJ found that Rodriguez-Benitez’s 2010 conviction for marijuana
possession made him inadmissible under INA § 212(a)(2), 3 and therefore he
was unable to show he was “not inadmissible” under INA § 240A(b)(2)(A)(iv). 4
The IJ also found that Rodriguez-Benitez was not eligible for a waiver of



      1 8 U.S.C. § 1182(a)(6)(A)(1).
      2 8 U.S.C. § 1229b(b)(2).
      3 8 U.S.C. § 1182(a)(2).
      4 8 U.S.C. § 1229b(b)(2)(A)(iv).

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                                       No. 13-60554
ineligibility for cancellation of removal under INA § 240A(b)(5) 5 because his
conviction was for marijuana and not domestic violence or stalking.
       Rodriguez-Benitez appealed the IJ’s decision to the BIA, which affirmed
on July 10, 2013. He timely appealed.
                                              II.
       The REAL ID Act of 2005 6 grants this Court “subject-matter jurisdiction
over constitutional claims and questions of law that were exhausted before the
BIA.” 7 “The BIA’s determination that an alien is ineligible for discretionary
relief in the form of cancellation of removal is a question of law that we review
de novo, deferring to the BIA’s interpretation of the statutes and regulations it
administers.” 8 We first consider “whether Congress has spoken directly to the
precise question at issue,” in which case “the BIA and this court must give
effect to that intent.” 9 Where, as here, the statute “is silent or ambiguous with
respect to the specific issue,” 10 but the three-member Board panel did not
publish its order in this case or otherwise cite to precedential authority, this
Court affords only Skidmore 11 deference to the panel’s interpretation. 12 To the
extent the BIA’s decision is affected by the IJ’s ruling, we review both
decisions. 13




       5  8 U.S.C. § 1229b(b)(5).
       6  8 U.S.C. § 1252 (2006).
        7 Said v. Gonzales, 488 F.3d 668, 670 (5th Cir. 2007) (citing 8 U.S.C. §§ 1252(a)(2)(D),

1252(d)(1)); see also Alvarado de Rodriguez v. Holder, 585 F.3d 227, 233–34 (5th Cir. 2009).
        8 Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009) (citing Danso v.

Gonzales, 489 F.3d 709, 712–13 (5th Cir. 2007); Marquez–Marquez v. Gonzales, 455 F.3d 548,
561 (5th Cir. 2006)).
        9 Perez Pimentel v. Mukasey, 530 F.3d 321, 324 (5th Cir. 2008) (quotation marks and

citations omitted).
        10 Id.
        11 Skidmore v. Swift & Co., 323 U.S. 134 (1944).
        12 Dhuka v. Holder, 716 F.3d 149, 154–56 (5th Cir. 2013).
        13 See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).

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                                     No. 13-60554
                                            III.
      Rodriguez-Benitez first argues that the IJ erred in finding him ineligible
for cancellation of removal for victims of domestic violence under INA
§ 240A(b)(2) based on inadmissibility under INA § 212(a)(2) because he never
was charged with inadmissibility under that section of the law. He alleges this
to be a prerequisite for ineligibility for relief. INA § 240A(b)(2) is a “Special
Rule for [a] Battered Spouse or Child” (“Special Rule Cancellation”) that
provides for the cancellation of removal and adjustment of status of an alien
“who is inadmissible or deportable . . . if the alien demonstrates that” he “has
been battered or subjected to extreme cruelty by a spouse or parent who is or
was a United States citizen” and that he is “not inadmissible under paragraph
(2) or (3) of section 212(a).” Paragraph (2) of section 212(a), in turn, lists
criminal grounds of inadmissibility, and specifies that an alien is inadmissible
if he is convicted of, or admits having committed, a violation of any law relating
to a controlled substance. 14 Rodriguez-Benitez argues that this Court should
interpret the statute as requiring the government overtly to charge an alien
with one of the grounds enumerated in INA § 212(a)(2) as a prerequisite for
finding him inadmissible on those grounds, and thus ineligible for Special Rule
Cancellation.
      Neither the text of the statute nor our precedent supports the reading
Rodriguez-Benitez urges. Rodriguez-Benitez analogizes his interpretation of
“inadmissible” to the series of cases in which the BIA has interpreted
“deportable” as requiring that an alien be charged with the grounds of
deportation to be disqualified from seeking suspension of deportation. The BIA
reasoned in two long-standing cases, Matter of Ching 15 and Matter of Fortiz, 16


      14 INA § 212(a)(2)(A)(i)(II).
      15 12 I. & N. Dec. 710, 710 (BIA 1968).
      16 21 I. & N. Dec. 1199 (BIA 1998)

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                                       No. 13-60554
that the phrase “is deportable” 17 “relates to an alien who has been charged and
found deportable”; in other words, an alien is statutorily eligible for the relief
of suspension of deportation despite being convicted of a disqualifying criminal
violation if the government failed to charge the alien as deportable on the
grounds of that specific criminal violation. 18 No provision of the law explicitly
required the government to charge disqualifying grounds of deportability. But
the BIA reasoned that an alien deported from within the United States “is
entitled to the full benefits of procedural due process” and that regulations
required determinations of deportability to be made on “clear, unequivocal, and
convincing evidence” and “only from a record made in a proceeding before a
special inquiry officer.” 19 An alien only “is deportable” for these purposes, then,
if he has been charged and found to be so.
       Rodriguez-Benitez         urges     that     a   different     interpretation       for
“inadmissible” would be arbitrary and unfounded. But the context of the two
phrases and the statutes in which they are found are distinct. The prior
version of the “Suspension of Deportation” statute at issue in Matter of Ching
provided that “the Attorney General may, in his discretion, suspend
deportation . . . of an alien . . . who applies to the Attorney General for
suspension of deportation and is deportable” for various reasons outlined in
different subsections. The BIA determined in Matter of Ching and Matter of
Fortiz that the phrase “is deportable” encompassed only those grounds of
deportability charged by the government. But here, unlike there, the statute


       17 This statutory language was used in the former INA § 244(a)(2) regarding
suspension of deportation, which was codified at 8 U.S.C. § 1254 and was repealed in 1996.
       18 Ching, 12 I. & N. Dec. at 710; Fortiz, 21 I. & N. Dec. at 1199 (“For an alien to be

barred from eligibility for a waiver under section 212(c) of the Act as one who ‘is deportable’
by reason of having committed a criminal offense, he or she must have been charged with,
and found deportable on, such grounds.”); In re Jurado-Delgado, 24 I. & N. Dec. 29, 31 (BIA
2006).
       19 Ching, 12 I. & N. Dec. at 712.

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                                       No. 13-60554
places an affirmative burden on the petitioner seeking relief: “The Attorney
General may cancel removal of . . . an alien who is inadmissible or deportable
. . . if the alien demonstrates that . . . the alien is not inadmissible” under the
criminal grounds that disqualify Rodriguez-Benitez. 20 This burden of proof on
the petitioner demonstrates that the government is not required to charge
disqualifying grounds enumerated therein, but rather that the petitioner must
show he has none. We must conclude that the government was not required to
charge Rodriguez-Benitez’s narcotics conviction in the NTA for that conviction
to serve as a ground of inadmissibility for Special Rule Cancellation, and we
thus dismiss his petition for review.
                                             IV.
      Rodriguez-Benitez also argues that a judge is permitted to waive
grounds of inadmissibility under INA § 212(a)(2) for offenses other than those
related to domestic violence. But the clear language of the statute states
otherwise. INA § 240A(b)(5) is entitled “Application of Domestic Violence
Waiver Authority” and states that “[t]he authority provided under section
237(a)(7) may apply” to the Special Rule Cancellation of Removal provisions.
INA § 237(a)(7), 21 in turn, states that the Attorney General has the authority
to waive otherwise-disqualifying crimes “with respect to crimes of domestic
violence and crimes of stalking” under certain conditions in the case of an alien
who is both a perpetrator and a victim of domestic violence. There is no support
for an argument that we should pull from INA § 237(a)(7) a general authority
to waive all crimes instead of the specific authority described therein. Because
the BIA accordingly did not err in concluding the IJ lacked authority to waive
Rodriguez-Benitez’s narcotics-related grounds of inadmissibility, we dismiss



      20   INA § 240A(b)(2)(A)(iv) (emphasis added).
      21   8 U.S.C. § 1227(a)(7).
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                                 No. 13-60554
his petition for review on these grounds as well.
                                       V.
      Rodriguez-Benitez’s marijuana conviction makes him inadmissible
under INA § 212(a)(2)(A)(i)(II), which is a disqualifying ground for Special Rule
Cancellation of Removal for victims of domestic violence. He thus is unable to
meet his burden to show he qualifies for this form of relief. Accordingly, we
DISMISS his petition for review.




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