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                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-14973
                            Non-Argument Calendar
                          ________________________

                           Agency No. A018-214-673


ELIODORO CEBALLOS DELGADO,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                               (April 17, 2013)

Before HULL, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

      Eliodoro Ceballos Delgado, a native and citizen of Cuba proceeding with

counsel, seeks review of the decision of the Board of Immigration Appeals
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(“BIA”) affirming the Immigration Judge’s (“IJ”) order of removal and denial of

Ceballos Delgado’s requests for a waiver of inadmissibility, pursuant to former

Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (“§ 212(c)

waiver”), and cancellation of removal, pursuant to INA § 240A(a), 8 U.S.C.

§ 1229b(a) (“cancellation of removal”). For the reasons set forth below, we deny

Ceballos Delgado’s petition.

                                         I.

      In 2007, the Department of Justice served Ceballos Delgado with a Notice to

Appear (“NTA”), charging him as being removable under INA

§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), because he was convicted of

a controlled substance violation. The NTA further alleged that, in 1987, Ceballos

Delgado had been convicted of unlawful importation of marijuana, in violation of

19 U.S.C. § 1595a, and in 2005, he had been convicted of marijuana trafficking, in

violation of Fla. Stat. § 893.135. During the proceedings before an IJ, Ceballos

Delgado admitted that he was convicted in 1987 for the marijuana-importation

offense and that his conviction was for an aggravated felony. Ceballos Delgado

also admitted that he was convicted in 2005 of the marijuana-trafficking offense,

and the IJ determined that the conviction was for a controlled substance offense

that rendered Ceballos Delgado removable. Ceballos Delgado contested, however,

whether the 2005 conviction was for an aggravated felony. Ceballos Delgado


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requested a § 212(c) waiver with respect to his 1987 conviction and cancellation of

removal with respect to his 2005 conviction. The IJ denied Ceballos Delgado’s

requests for a § 212(c) waiver and cancellation of removal because he had been

convicted of an aggravated felony.

       Ceballos Delgado applied for withholding of removal, INA § 241(b)(3), 8

U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against

Torture (“CAT”), 8 C.F.R. § 208.16(c). The IJ denied those applications and

ordered him removed. Ceballos Delgado appealed, and the BIA determined that it

agreed with the IJ that Ceballos Delgado’s convictions rendered him ineligible to

simultaneously apply for a § 212(c) waiver and for cancellation of removal. The

BIA also agreed that Ceballos Delgado had not established his eligibility for

withholding of removal and CAT relief.1

                                               II.

       On appeal, Ceballos Delgado acknowledges that other circuits have

determined that granting a § 212(c) waiver does not expunge the relevant offense

or its categorization, and thus, a § 212(c) waiver does not preclude the relevant

offense from operating as a bar to other forms of immigration relief. Nevertheless,

Ceballos Delgado contends that it would be contrary to BIA precedent to allow
       1
         Ceballos Delgado has abandoned any argument relating to the denial of his claims for
withholding of removal and for CAT relief by not addressing these issues on appeal. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that issues were
abandoned where the alien did not offer argument on the issue to our Court).

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him to obtain a waiver under § 212(c) with respect to his 1987 aggravated-felony

conviction, but then use his 1987 conviction to bar him from relief under

§ 240A(a). He cites to Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), in

support of his argument.

       We review questions of law de novo. Assa’ad v. U.S. Att’y Gen., 332 F.3d

1321, 1326 (11th Cir. 2003). Because the IJ’s decision that Ceballos Delgado was

not entitled to a § 212(c) waiver or cancellation of removal was based on a legal

determination, and not a discretionary or factual one, we have jurisdiction to

review the issue presented on appeal. See INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D) (providing that we have jurisdiction to review constitutional

claims or questions of law).

       An alien convicted of a violation of any federal or state law relating to a

controlled substance offense is inadmissible. INA § 212(a)(2)(A)(i)(II), 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). An alien who is inadmissible under INA § 212, 8 U.S.C.

§ 1182 is considered removable. INA § 240(e)(2)(A), 8 U.S.C. § 1229a(e)(2)(A).

Prior to 1996, an alien who had accrued seven years of lawful permanent residence

in the United States could request that the Attorney General waive the alien’s basis

for excludability or deportation pursuant to INA § 212(c), 8 U.S.C. § 1182(c).2


       2
         After 1996, exclusion proceedings and deportation proceedings, which had previously
been separate and distinct, were merged into unified removal proceedings. Dormescar v. U.S.
Att’y Gen., 690 F.3d 1258, 1260 (11th Cir. 2012).
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Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1260 & n. 12 (11th Cir. 2009). Under

this provision of the INA, an alien convicted of an aggravated felony was eligible

for such discretionary relief so long as he did not serve more than five years’

imprisonment. Id. at 1260. In 1996, Congress repealed this relief under the INA,

replacing it with a procedure referred to as “cancellation of removal.” Id. at 1260

& n.11. In I.N.S. v. St. Cyr, the Supreme Court held that, despite its repeal,

§ 212(c) waivers remained available for aliens whose convictions were obtained

through plea agreements and who, notwithstanding those convictions, would have

been eligible for a § 212(c) waiver at the time of their plea under the law then in

effect, as these aliens had almost certainly relied upon the likelihood of them

receiving such relief in deciding whether to forgo their right to a trial. 533 U.S.

289, 325-26, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001).

      Cancellation of removal, in contrast to relief under § 212(c), is not available

to an alien who has been convicted of an aggravated felony. INA § 240A(a)(3), 8

U.S.C. § 1229b(a)(3). Further, the provisions of § 240A(a) do not apply to “[a]n

alien whose removal has previously been cancelled under this section or . . . who

has been granted relief under section 1182(c) of this title, as [that section was] in

effect before September 30, 1996.” INA § 240A(c)(6), 8 U.S.C. § 1229b(c)(6).

      In Peralta-Taveras v. U.S. Att’y Gen., the Second Circuit persuasively held

that an alien with two convictions, one of which was a 1996 conviction for an


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aggravated felony, could not obtain relief from removal through simultaneous

consideration of his applications for a § 212(c) waiver and cancellation of removal.

488 F.3d 580, 583-84 (2d Cir. 2007). Specifically, the granting of a § 212(c)

waiver did not expunge the 1996 conviction or its categorization as an aggravated

felony. Id. Thus, regardless of the availability of a § 212(c) waiver, the 1996

aggravated-felony conviction still precluded the granting of the alien’s application

for cancellation of removal with respect to the other offense rendering him

removable. Id. at 584-85 (noting that the Third, Fifth, Eighth, and Ninth Circuits

had recently rejected claims similar to Peralta-Taveras’s claims). The Second

Circuit also determined that granting a § 212(c) waiver precluded the granting of

cancellation of removal, as INA § 240A(c)(6), 8 U.S.C. § 1229b(c)(6) expressly

precludes cancellation of removal for aliens who have received a § 212(c) waiver.

Id. at 585-86; see also Garcia-Jimenez v. Gonzales, 488 F.3d 1082, 1085-86 (9th

Cir. 2007) (persuasively holding that INA § 240A(c)(6), 8 U.S.C. § 1229b(c)(6)

bars an alien who has received a § 212(c) waiver, at any time, from receiving

cancellation of removal, such that an alien may be eligible for one form of relief or

the other, but not both).

      Here, Ceballos Delgado concedes that his 1987 conviction is an aggravated

felony. Based on the persuasive authority of other circuits, even if he obtained a

waiver of inadmissibility with respect to his 1987 conviction, that conviction


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would not be expunged from his record. See Peralta-Taveras, 488 F.3d at 583-85.

Thus, that conviction would bar him from obtaining cancellation of removal with

respect to his 2005 conviction, as cancellation of removal is not available to aliens

convicted of aggravated felonies. See INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).

Because he cannot obtain cancellation of removal with respect to his 2005

conviction, which, as a controlled substance offense, provides a basis for his

removal, the BIA did not err in determining that Ceballos Delgado cannot seek

both a § 212(c) waiver and cancellation of removal. Additionally, based on the

text of § 240A(c)(6) and the persuasive authority of other circuits, we conclude

that Ceballos Delgado is barred from receiving both a § 212(c) waiver and

cancellation of removal, such that he is only eligible for one or the other, but not

both. See Peralta-Taveras, 488 F.3d at 585-86; Garcia-Jimenez, 488 F.3d at

1085-86.

      Matter of Rainford does not affect our decision. In that case, the IJ had

determined that an alien who is not subject to a statutory ground of exclusion, but

who would immediately become subject to deportation upon entry to the United

States, must be found inadmissible. Matter of Rainford, 20 I. & N. Dec. at 599.

The BIA determined that, by requiring the alien to prove that he would not

ultimately become deportable once admitted for lawful permanent residence, the IJ

placed an additional burden on the alien that did not appear in the relevant statutes.


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Id. at 600-01. Here, Ceballos Delgado is not subject to any burden not intended by

Congress. Rather, as set out in INA § 240A(c)(6), 8 U.S.C. § 1229b(c)(6), he is

simply ineligible to obtain both a § 212(c) waiver and cancellation of removal.

      For the foregoing reasons, we deny Ceballos Delgado’s petition.

      PETITION DENIED.




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