           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 29, 2009

                                     No. 09-60119                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JAMIL ABBASI,

                                                   Petitioner
v.

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

                                                   Respondent




                            Petition for Review of an Order
                         of the Board of Immigration Appeals
                                 BIA No. A78 130 989


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
                                              I.
       Petitioner Jamil Abbasi is a native and citizen of Pakistan who entered the
United States in 1996 without inspection and without a visa. He has remained in the
country since then. On June 1, 2006, he was served with a Notice to Appear alleging
that he had entered the United States without being admitted or paroled and was
therefore removable because he was inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i).



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                    No. 09-60119

The charge was subsequently supplemented to allege inadmissibility under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), based on Abbasi’s June 14, 2001, conviction under Texas law for
misdemeanor possession of marijuana.
      Abbasi filed for two types of relief: an application for waiver of his controlled
substance grounds of inadmissibility under 8 U.S.C. § 1182(h), and an application for
cancellation of removal under 8 U.S.C. § 1229b(b). Both applications required a
showing of hardship to a United States citizen family member, and Abbasi based them
on alleged hardship to his daughter Ammara.
      The Immigration Judge (“IJ”) denied both applications for relief. He held that
the § 1182(h) application was improper because Abbasi had not filed it concurrently
with an application for adjustment of status. He also held that even if the controlled
substance ground of inadmissibility was waived, Abbasi would still be inadmissible on
the separate ground that he lacked the proper documentation to be admitted to the
United States. The IJ further held that Abbasi’s application for cancellation of removal
failed for two reasons.     First, his controlled substance conviction barred the
cancellation of removal (whether or not it was waived under § 1182(h)), and second, the
conviction stopped his accrual of continuous physical presence before the ten years
required for a cancellation of removal under § 1229b(b)(1).
      Abbasi appealed to the Board of Immigration Appeals (“Board”). His argument
focused on the hardship to his daughter that would exist if he were removed, and he
also asserted that his marijuana offense fell into the exception for petty offenses. The
Board dismissed his appeal, holding that the IJ had not erred and pointing out that the
petty offense exception applies only to crimes of moral turpitude, not to controlled
substance offenses. 8 U.S.C. § 1182(a)(2)(A)(i)(I). Abbasi now petitions this court for
review, challenging the Board’s application of several provisions of the Immigration
and Nationality Act (“INA”).
                                          II.
      We review only the Board’s decision except to the extent it was influenced by the
IJ’s decision. Zhu v. Gonzales, 493 F.3d 588, 593-94 (5th Cir. 2007). In this case we
may review the IJ’s decision because the Board referred to it and agreed with it.

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        We review de novo the Board’s determinations of questions of law, but we defer
to the Board’s construction of immigration statutes. Vasquez-Martinez v. Holder, 564
F.3d 712, 715 (5th Cir. 2009). Abbasi does not dispute any of the Board’s findings of
fact.
        Abbasi raises three challenges on appeal. He challenges the Board’s finding that
he is ineligible for cancellation of removal, its finding that he is ineligible for a waiver
of his controlled substance ground of inadmissibility, and the Board’s and IJ’s refusals
to hear evidence on the issue of hardship to his U.S. citizen daughter. We find no error
by the Board or IJ on any of these issues.
        The Board properly found Abbasi ineligible for cancellation of removal under 8
U.S.C. § 1229b(b). That subsection provides that the Attorney General may grant
cancellation of removal only to aliens who satisfy four conditions: (A) continuous
physical presence in the United States for ten years; (B) good moral character; (C) a
lack of convictions for offenses under certain provisions of the INA including §
1182(a)(2); and (D) exceptional and extremely unusual hardship to the alien’s spouse,
parent, or child who is a United States citizen or lawful permanent resident. Abbasi
is ineligible for cancellation under both (A) and (C) due to his conviction for marijuana
possession in Texas.      The conviction falls under § 1182(a)(2), which renders
inadmissible any alien convicted of a violation of any law or regulation of a state
relating to a controlled substance, and therefore bars him from being eligible for
cancellation under § 1229b(b)(1)(C). Furthermore, § 1229b(d)(1) provides that the
continuous physical presence required under §1229b(1)(A) ends when the alien
commits an offense referred to in § 1182(a)(2), so the same 2001 marijuana conviction
stopped Abbasi’s accrual of physical presence in the United States only five years after
his arrival in 1996. Abbasi seems to suggest that the marijuana conviction does not
bar his eligibility for cancellation for removal because the conviction should be waived
under § 1182(h). However, even if Abbasi was eligible for a waiver of the marijuana
conviction as a ground of inadmissibility under § 1182(h), such a waiver affects only
the finding of inadmissibility and not the underlying conviction. See Amouzadeh v.
Winfrey, 467 F.3d 451, 458-59 (5th Cir. 2006) (holding that because a waiver under

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now-repealed § 212(c) of the INA “‘waives’ the finding of excludability or deportability
rather than the basis of excludability itself, the crimes alleged to be grounds for
excludability or deportability . . . do not disappear from the alien’s record for
immigration purposes”) (quoting Matter of Balderas, 20 I&N Dec. 389, 391 (BIA 1991).
Therefore, even a grant of a § 1182(h) waiver of the conviction as a ground of
inadmissibility would not cure Abbasi’s ineligibility for cancellation of removal.
      Furthermore, the Board properly found Abbasi ineligible for a waiver of his
controlled substance ground of inadmissibility because he had not concurrently applied
for an adjustment of status under 8 U.S.C. § 1255. The regulations state that with two
inapplicable exceptions, “an application under [8 C.F.R. Part 1245] shall be the sole
method of requesting the exercise of discretion under [§ 1182(h)] as [it] relate[s] to the
inadmissibility of an alien in the United States.” 8 C.F.R. § 1245.1(f). See also Matter
of Balao, 20 I&N Dec. 440, 446 (BIA 1992) (holding that waiver under § 1182(h) was
unavailable because the alien had not applied for an adjustment of status). Abbasi’s
application for cancellation of removal, which is entitled “Application for Cancellation
of Removal and Adjustment of Status,” is not the same as the adjustment of status
application under § 1255 that is required in order for § 1182(h) waiver to apply; his
application falls under § 1229b(b)’s provision for cancellation of removal and
adjustment of status. Additionally, even if Abbasi did receive a waiver under § 1182(h)
for his marijuana conviction, he would remain removable on the other ground of his
inadmissibility as an illegal entrant under § 1182(a)(6)(A)(i).
      Finally, because the IJ and the Board did not need to reach the question of
hardship due to Abbasi’s other grounds for ineligibility for relief, they did not err in
failing to hear more testimony regarding hardship to Abbasi’s U.S. citizen daughter.
                                           III.
      For the reasons stated above, the petition for review is DENIED and the
order of the Board is AFFIRMED.




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