Israel Zamora-Rios, a citizen of Mexico, entered the United States without inspection in November 1990. He was convicted of domestic violence offenses under Cal.Penal Code § 273.5(a) in 1994 and 2000. In January 2001, the former Immigration and Naturalization Service commenced removal proceedings on the basis of his illegal entry. See INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
The Notice to Appear did not include any charges based on the domestic violence convictions.
Zamora-Rios applied for cancellation of removal pursuant to INA § 240A(b), 8 U.S.C. § 1229b(b), and requested a waiver of inadmissibility under INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B). The immigration judge ("IJ") pretermitted his application for cancellation of removal on the basis that his domestic violence convictions statutorily precluded him from establishing that: (1) he was a person of good moral character, required by INA § 240A(b)(1)(B), 8 U.S.C. § 1229b(b)(1)(B); and (2) he had not been convicted of an offense under INA § 237(a)(2), 8 U.S.C. § 1227(a)(2), required by INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C). The IJ ruled that a waiver of inadmissibility under INA § 212(h) could not cure Zamora-Rios's statutory ineligibility for a cancellation of removal. She therefore denied his application and ordered him removed. The Board of Immigration Appeals ("BIA") affirmed.
I.
The IJ ruled that Zamora-Rios was statutorily ineligible for a finding of good moral character under § 240A(b)(1)(B), 8 U.S.C. § 1229b(b)(1)(B). INA § 101(f)(3) precludes a finding of good moral character for any person described in § 212(a)(2), which includes a noncitizen convicted of a "crime involving moral turpitude." 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I). Zamora-Rios does not dispute that his domestic violence offenses constitute crimes of moral turpitude, but he maintains that, pursuant to INA § 212(h), 8 U.S.C. § 1182(h), the IJ could have waived the applicability of INA § 212(a)(2). The IJ acknowledged, "Should respondent be granted a waiver under [INA §] 212(h) . . . respondent would not be inadmissible under Section 212(a)(2)(A)(i)(I)," but she decided he still could not establish good moral character because he remained a "person[] described under Section 212(a)(2), whether inadmissible or not." She reasoned that, because INA § 101(f)(3), includes the phrase "whether inadmissible or not," Congress must not have intended for § 212(h) waivers to cure statutory ineligibility for cancellation of removal.
In In re Garcia-Hernandez, 23 I. N. Dec. 590, 593 (BIA 2003), where a respondent was eligible for an exception to § 212(a)(2), the BIA ruled, "We find [the] alien is not within the class of aliens described in section 212(a)(2)(A). . . ." The agency explained, where INA § 212(a)(2)(A) does not apply, a noncitizen "cannot be considered, on the basis of his [Cal.Penal Code § 273.5(a)] conviction alone, an alien `described in' section 212(a)(2)(A) of the Act for purposes of the good moral character definition in section 101(f)(3)." Id.; see also Matter of Alarcon, 20 I. N. Dec. 557, 559-60, 563 (BIA 1992) (ruling that grant of § 212(h) waiver can cure moral turpitude bar to adjustment of status). The BIA ruled that "the `whether inadmissible or not' language in section 101(f)(3), properly understood, does not show that the . . . exception is inapplicable." Garcia-Hernandez, 23 I. N. Dec. at 593 n. 2 (citing In re M-, 7 I. N. Dec. 147 (BIA 1956)) (explaining legislative history of relevant phrase). Therefore, if granted, a waiver under § 212(h) could have cured statutory ineligibility for a finding of good moral character.
We conclude that the IJ erred in ruling that Zamora-Rios was statutorily precluded from relief under § 240A(b)(1)(B). However, as explained below, this error is not dispositive because the IJ correctly concluded that Zamora-Rios was barred from relief pursuant to § 240A(b)(1)(C).
II.
INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C), permits cancellation of removal only if an applicant "has not been convicted of an offense under [INA §§ 212(a)(2), 237(a)(2), or 237(a)(3).]" Because the IJ addressed only the applicability of INA § 237(a)(2)(E)(i), this court addresses only that issue. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (stating that court considers only the grounds relied upon by the agency).
INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), provides that any noncitizen convicted of a crime of domestic violence is deportable. INA § 212(h) provides no relief from the application of § 237. See 8 U.S.C. § 1182(h) ("The Attorney General may . . . waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of this section.") (emphasis added). No other waiver applies in this case. Therefore, § 237(a)(2)(E)(i) creates a statutory bar to cancellation of removal for Zamora-Rios.
Pursuant to § 240A(b)(1)(C), the IJ was correct in finding Zamora-Rios ineligible for cancellation of removal.
III.
Zamora-Rios asserts that the case currently before the panel raises a novel legal issue not controlled by existing precedent and that the BIA erred in issuing a summary affirmance. See 8 C.F.R. § 1003.1(e)(4)(i)(A). As discussed above, the IJ ruled that Zamora-Rios was statutorily ineligible for cancellation of removal under INA § 240A(b)(1)(C) because he had been convicted of a domestic violence offense listed under § 237(a)(2)(E)(i). Applying the plain language of the INA, it is clear that Zamora-Rios is barred from relief. While there may be no Ninth Circuit opinion on this issue, that is only because its resolution is obvious from the statute. It "do[es] not involve the application of precedent to a novel factual situation." 8 C.F.R. § 1003.1(e)(4)(i)(A). Therefore, the BIA did not err in issuing a summary affirmance.
The petition is DENIED.