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Keywords

plearegulationmisdemeanor

appealplearegulationprobationliens

Related Cases

Reyes v. Holder

Facts

Luis A. Reyes, born in El Salvador, entered the United States illegally in June 1986. He pleaded guilty to menacing in the second degree in January 1995, which is a Class A misdemeanor. Reyes was later served with a Notice to Appear in 2005, charging him with being present in the U.S. without having been admitted, and he sought special rule cancellation of removal under NACARA. The BIA determined that his conviction made him ineligible for this relief.

Reyes was born in El Salvador and entered the United States illegally in June of 1986, when he was 19 years old. As relevant here, Reyes pleaded guilty on January 18, 1995, to menacing in the second degree, in violation of New York Penal Law 120.14. It appears from the Administrative Record that Reyes received no jail time and was sentenced only to three years of probation.

Issue

Whether a conviction of a crime specified under 237 of the INA can render an unadmitted alien ineligible for special rule cancellation of removal.

The question presented in this appeal is whether conviction of a crime specified under 237(a)(2), (3) or (4) of the INA can render an unadmitted alien ineligible for special rule cancellation of removal, even though those provisions apply only to admitted aliens.

Rule

An alien seeking special rule cancellation of removal must not be 'inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)' of the INA.

In order to be eligible for special rule cancellation of removal under that provision, an alien must not be inadmissible by virtue of having committed certain crimes specified in 212 of the INA or deportable by virtue of having committed certain crimes specified in 237 of the INA.

Analysis

The court analyzed the BIA's interpretation of the regulation and found it to be inconsistent with the legal definitions of 'inadmissible' and 'deportable.' The court emphasized that an alien who has not been admitted to the United States cannot be classified as 'deportable' under 237. Therefore, Reyes's conviction, which would render an admitted alien deportable, could not be used to deny him eligibility for special rule cancellation of removal.

The BIA's interpretation is 'plainly erroneous or inconsistent with the regulation.' The BIA's reading of the rule fails to properly apply its termsnamely, that the alien not be 'inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)' of the INA.

Conclusion

The court granted the petition for review in part, concluding that the BIA erred in determining Reyes's ineligibility based on his conviction. The case was remanded for further proceedings.

Because our holding is limited to the conclusion that conviction of a crime specified under 237 cannot render Reyes, as an unadmitted alien, ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes.

Who won?

Luis A. Reyes prevailed in the case because the court found that the BIA's interpretation of the law was incorrect, specifically regarding the definitions of 'inadmissible' and 'deportable.'

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