PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1148

MARINA HERNANDEZ, a/k/a Marina Hernandez Hernandez,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Appeals.

Argued: January 29, 2015 Decided: April 14, 2015

Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit 

Judges.

Petition denied by published opinion. Judge Niemeyer wrote the 

opinion, in which Chief Judge Traxler and Judge Motz joined.

ARGUED: Ofelia Lee Calderon, Anam Rahman, CALDERÓN SEGUIN PLC, 

Fairfax, Virginia, for Petitioner. Monica G. Antoun, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 

ON BRIEF: Stuart F. Delery, Assistant Attorney General, 

Shelley R. Goad, Assistant Director, Nancy K. Canter, Office of 

Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT 

OF JUSTICE, Washington, D.C., for Respondent.
2

NIEMEYER, Circuit Judge:

The Board of Immigration Appeals (“BIA”) denied the 

application of Marina del Carmen Hernandez, a native and citizen 

of El Salvador, for cancellation of removal under 8 U.S.C. 

§ 1229b(b)(1) because Hernandez had committed a “crime involving 

moral turpitude” -- a petit-larceny offense -- that rendered her 

ineligible for such relief. See 8 U.S.C. § 1229b(b)(1)(C) 

(prohibiting the Attorney General from canceling the removal of 

an alien who has “been convicted of an offense under section 

1182(a)(2), 1227(a)(2), or 1227(a)(3)”); id. § 1227(a)(2)(A)(i)

(listing as an offense “a crime involving moral turpitude . . . 

for which a sentence of one year or longer may be imposed”). 

Hernandez argued that the cross-reference in § 1229b(b)(1)(C) to 

§ 1227(a)(2) did not apply to her because § 1227(a)(2) makes 

deportable only persons “in and admitted to the United States,” 

and Hernandez had never been lawfully admitted. Rather, she 

maintained that only the cross-reference to § 1182(a)(2) applied 

and that that section rendered her prior crime irrelevant

because it contained a “petit-offense exception.” The BIA 

rejected this argument, relying on its precedential decision in 

Matter of Cortez Canales, 25 I. & N. Dec. 301, 306–08 (2010), 

which read § 1229b(b)(1)(C) to cross-reference only the offenses

listed in the three cross-referenced sections, not the

substantive operation of those offenses. Thus, even though the 
3

substantive operation of § 1227(a)(2) did not apply to 

Hernandez, the offense listed in § 1227(a)(2) did apply, and 

that provision contains no petit-offense exception.

We conclude that the BIA’s reading of § 1229b(b)(1)(C) is 

the most logical reading and therefore is, at least, a 

permissible interpretation of the statute, entitling the BIA’s 

decision to Chevron deference. Thus, we affirm the BIA and deny 

Hernandez’s petition for review.

I

Hernandez entered the United States sometime in 1997 

without lawful admission or parole after inspection and has, 

since then, lived continuously in Virginia with her four 

children, who are U.S. citizens. In 2001, Hernandez was granted 

“temporary protected status,” which affords eligible aliens 

protection from removal to certain countries upon the Attorney 

General’s determination that conditions in those countries would 

prevent their safe return. See 8 U.S.C. § 1254a.

In January 2007, Hernandez was convicted of petit larceny

under Va. Code Ann. § 18.2-96 and was sentenced to 30 days’

confinement in jail. After she failed to respond to a request 

for documentation regarding her criminal record, U.S. 

Citizenship and Immigration Services terminated her application 

to renew her temporary protected status.
4

In March 2009, the U.S. Department of Homeland Security

commenced removal proceedings against Hernandez, charging her 

with being “present in the United States without being admitted 

or paroled,” in violation of 8 U.S.C. § 1182(a)(6)(A)(i). When 

she appeared before an immigration judge in March 2013, she

conceded removability but filed an application for cancellation 

of removal under § 1229b(b)(1), alleging that her children would 

suffer hardship if she were not permitted to remain in the 

United States. The immigration judge pretermitted her 

application, holding that her petit-larceny conviction rendered 

her ineligible for the relief she requested, and ordered that 

she be removed to El Salvador. 

The BIA dismissed Hernandez’s appeal. Noting that 

Hernandez had conceded that petit larceny -- a Class 1 

misdemeanor under Va. Code Ann. § 18.2-96, punishable by 

confinement in jail for not more than 12 months, id. § 18.2-11 

-- is a crime involving moral turpitude, the BIA held that 

Hernandez was ineligible for cancellation of removal under 

§ 1229b(b)(1)(C) because she had been convicted of “an offense 

under section . . . 1227(a)(2)” -- specifically, “a crime 

involving moral turpitude . . . for which a sentence of one year 

or longer may be imposed,” § 1227(a)(2)(A)(i). The BIA rejected 

her argument that the petit-offense exception to § 1182(a)(2), a 

section that is also cross-referenced in § 1229b(b)(1)(C), 
5

preserved her eligibility for cancellation of removal, holding 

that the exception had no applicability to offenses described in 

§ 1227(a)(2). The BIA also rejected Hernandez’s argument that 

the offenses in § 1227(a)(2) and § 1227(a)(3) applied only to 

aliens who, unlike Hernandez, had been admitted to the United 

States, while the offenses in § 1182(a)(2) applied only to 

aliens who had not been admitted. To do so, it relied on its 

prior decision in Cortez Canales, which rejected the distinction

that Hernandez was trying to make.

From the BIA’s decision, Hernandez filed this petition for 

review.

II

In her petition, Hernandez contends that even though she

committed a crime involving moral turpitude for which a sentence 

of one year could have been imposed, she nonetheless remains 

eligible for cancellation of removal under § 1229b(b)(1) because 

her offense was excepted by the petit-offense exception 

contained in § 1182(a)(2). In response to the government’s 

position that § 1227(a)(2), which contains no petit-offense 

exception, also applies, Hernandez contends that 

§ 1229b(b)(1)(C)’s cross-reference to § 1227(a)(2) pertains only 

to aliens who, unlike her, were admitted and are now deportable. 

She argues further that even if § 1229b(b)(1)(C) generally 
6

cross-references the offenses in § 1227(a)(2) regardless of an 

alien’s admission status, § 1227(a)(2)(A)(i) does not apply to 

unadmitted aliens because that section only makes an alien 

deportable upon conviction of a crime involving moral turpitude 

that was committed “within five years . . . after the date of 

admission.” (Emphasis added). Thus, Hernandez argues that only 

offenses under § 1182(a)(2) apply to her and that § 1182(a)(2)’s 

petit-offense exception preserves her eligibility for 

cancellation of removal.

The government contends that because § 1229b(b)(1)(C), by 

its plain terms, applies both to aliens previously admitted and 

now deportable and to aliens never admitted and now subject to 

removal, the provision disqualifies from eligibility for 

cancellation of removal the entire class of aliens who have 

committed any offense listed in any of the three sections crossreferenced in § 1229b(b)(1)(C). It argues that § 1229b(b)(1)(C) 

does not cross-reference the substantive operation of those 

sections, but only the offenses described within them, pointing 

to the specific language of § 1229b(b)(1)(C) that allows the 

cancellation of removal for admitted and unadmitted aliens only 

if the alien “has not been convicted of an offense under” the 

three sections. To support its conclusion, the government 

relies on the BIA’s precedential decision in Cortez Canales, 

which so held.
7

Because the BIA’s decision and the decision in Cortez 

Canales involve statutory interpretation, we review the issue de 

novo. But in doing so, we give the BIA Chevron deference so 

long as its decision is a precedential decision issued by a 

three-judge panel. See Martinez v. Holder, 740 F.3d 902, 909 

(4th Cir. 2014). While the BIA’s decision in this case was 

issued by a single BIA member, the BIA relied on Cortez Canales, 

which was decided by a three-judge panel, thus entitling it to 

Chevron deference. See, e.g., Escobar v. Holder, 657 F.3d 537, 

542 (7th Cir. 2011); Efagene v. Holder, 642 F.3d 918, 920 (10th 

Cir. 2011); Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th 

Cir. 2009). Thus, Cortez Canales controls to the extent that 

“Congress has not directly addressed the precise question at 

issue” and “the [BIA]’s answer is based on a permissible 

construction of the statute.” Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

To begin with, we recognize that the Immigration and 

Nationality Act, 8 U.S.C. §§ 1101-1537, often makes the 

distinction between an alien who has never been admitted to the 

United States and an alien who has been admitted but who has 

subsequently become deportable. Both inadmissible and 

deportable aliens, however, are removable, albeit sometimes for 

different grounds. See Judulang v. Holder, 132 S. Ct. 476, 479

(2011). Compare § 1182(a) (cataloging the grounds that render
8

an alien “ineligible to be admitted to the United States”

(emphasis added)), with § 1227(a) (listing the grounds for 

deportation of an alien “in and admitted to the United States”). 

Moreover, both inadmissible and deportable aliens can apply for 

discretionary cancellation of removal under § 1229b(b)(1). And 

when they do, the specific criteria that they must satisfy are 

the same regardless of whether they are inadmissible or 

deportable. See id. § 1229b(b)(1) (providing that the Attorney 

General may cancel removal of “an alien who is inadmissible or 

deportable,” so long as the alien satisfies the specified

criteria). Thus, regardless of whether Hernandez is 

inadmissible or deportable, she is eligible for cancellation of 

removal if she “has not been convicted of an offense under 

section 1182(a)(2), 1227(a)(2), or 1227(a)(3).” Id.

§ 1229b(b)(1)(C).

Section 1182(a)(2) provides that an alien is “ineligible to 

be admitted to the United States” if he has been convicted of 

certain listed crimes, including a crime involving moral 

turpitude. But the crime involving moral turpitude listed under 

this section is subject to a petit-offense exception, which 

provides that a conviction for a crime involving moral turpitude 

does not render an alien inadmissible if (1) the alien has been 

convicted of a single crime; (2) the maximum penalty for the 

crime committed “[does] not exceed imprisonment for one year”; 
9

and (3) the alien “[is] not sentenced to a term of imprisonment 

in excess of 6 months.” § 1182(a)(2)(A)(ii)(II). Section 

1227(a)(2) provides that an alien “in and admitted to the United 

States” is deportable if he has been convicted of certain listed 

crimes, including a crime involving moral turpitude for which a 

sentence of one year or longer may be imposed, but only if the 

crime is committed within five years after the date of 

admission. Id. § 1227(a)(2)(A)(i). And § 1227(a)(3) provides 

that an alien is deportable if he has been convicted of a 

failure to register or a falsification of certain entry 

documents.

It is important to note that the cross-referenced sections 

-- § 1182(a)(2), § 1227(a)(2), and § 1227(a)(3) -- do not 

themselves criminalize any behavior. Rather, each lists

offenses that produce various immigration consequences. For 

example, § 1227(a)(2)(A)(i) provides that any alien who has been 

convicted of a qualifying crime involving moral turpitude during 

the specified five-year period faces the immigration consequence

of deportation. Section 1229b(b)(1)(C), however, does not 

appear to import the time constraint or the immigration 

consequence of § 1227(a)(2)(A)(i) because § 1229b(b)(1)(C)

itself deals with its own consequence -- the ineligibility for

cancellation of removal. Thus, the provision appears to direct 

consideration of only the offense in the cross-referenced 
10

section. Moreover, because § 1229b(b)(1)(C) addresses both

admitted and unadmitted aliens alike, the fact that 

§ 1227(a)(2)(A)(i) renders deportable only an alien who has been 

admitted and only then if the alien committed the offense within 

a specified time period is irrelevant for purposes of describing 

crimes relevant to the availability of cancellation of removal 

under § 1229b(b)(1)(C). In short, § 1229b(b)(1)(C) crossreferences only the offenses that preclude cancellation of 

removal, not the immigration consequences that stem from those 

offenses. 

This construction is further indicated by the language

of § 1229b(b)(1)(C)’s surrounding provisions. Section

1229b(b)(2)(A)(iv) permits the Attorney General to cancel the 

removal of an inadmissible or deportable alien who has been 

battered by a spouse or parent of a U.S. citizen if, inter alia, 

“the alien is not inadmissible under paragraph (2) or (3) of 

section 1182(a) . . . [and] is not deportable under 

paragraphs (1)(G) or (2) through (4) of section 1227(a).” 

(Emphasis added). Similarly, under the “stop-time rule” of 

§ 1229b(d)(1)(B), any period of continuous residence or 

continuous physical presence in the United States is deemed to 

end for purposes of § 1229b “when the alien has committed an 

offense referred to in section 1182(a)(2) . . . that renders the 

alien inadmissible to the United States under section 1182(a)(2) 
11

. . . or removable from the United States under section 

1227(a)(2) or 1227(a)(4).” (Emphasis added). Thus, whereas 

§ 1229b(b)(2)(A)(iv) and § 1229b(d)(1)(B) explicitly specify 

that the crimes listed in the cross-referenced statutes must 

render the specific alien in question inadmissible or 

deportable, § 1229b(b)(1)(C) lacks such explicitness, crossreferencing only the crimes. Had Congress wanted 

§ 1229b(b)(1)(C) to be interpreted in the same manner as 

§ 1229b(b)(2)(A)(iv) and § 1229b(d)(1)(B), it would likely have 

used similar language. See Cortez Canales, 25 I. & N. Dec. 

at 308 (concluding that the stop-time rule “clearly evidences 

Congress’ understanding of how to draft statutory language 

requiring an alien to be inadmissible or removable under a 

specific charge in section [1182] or [1227]”).

Hernandez maintains that if Congress had intended to crossreference only the offenses listed in the cross-referenced 

sections and not their immigration consequences, it would have 

used the phrase “an offense referred to in,” as it did in the 

stop-time rule, rather than the phrase “an offense under.” 

Congress, however, “is permitted to use synonyms in a statute.” 

Tyler v. Cain, 533 U.S. 656, 664 (2001); see also, e.g., Moore 

v. Harris, 623 F.2d 908, 914 (4th Cir. 1980) (“Inadvertent 

statutory usage of synonyms in parallel sections does not 
12

require us to conjure up a distinction which would violate the 

statute’s raison d’etre”).

Accordingly, the most natural reading of § 1229b(b)(1)(C) 

is that a conviction for any offense listed in § 1182(a)(2), 

§ 1227(a)(2), or § 1227(a)(3) renders an alien ineligible for 

cancellation of removal, regardless of the alien’s status as an 

admitted or unadmitted alien. Accord Gonzalez-Gonzalez v. 

Ashcroft, 390 F.3d 649, 650 (9th Cir. 2004) (holding that an 

unadmitted alien who was convicted of a crime of domestic 

violence -- a conviction that renders an admitted alien 

deportable under § 1227(a)(2) but that does not render an 

unadmitted alien inadmissible under § 1182(a)(2) -- was 

ineligible for cancellation of removal because “[t]he plain 

language of § 1229b indicates that it should be read to crossreference a list of offenses in three statutes, rather than the 

statutes as a whole”); see also Nino v. Holder, 690 F.3d 691, 

697–98 (5th Cir. 2012) (rejecting an admitted alien’s argument 

that a crime-involving-moral-turpitude offense is only “under”

§ 1227(a)(2)(A)(i) for purposes of § 1229b(b)(1)(C) if the 

conviction takes place within five years after the date of 

admission, and holding that “Section 1229b(b)(1)(C), without

ambiguity, references Section 1227(a)(2) in order to identify 

the kinds of offenses that will make an alien ineligible for 

cancellation of removal”). But see Coyomani-Cielo v. Holder, 
13

758 F.3d 908, 910–11 (7th Cir. 2014) (holding that 

§ 1229b(b)(1)(C) is ambiguous because it “effectively says that 

the Attorney General may cancel removal for an inadmissible or 

deportable alien who has not been convicted of an offense under 

another provision of the statute that speaks explicitly, and 

only, in terms of deportable aliens”).

While our conclusion might not necessarily exclude some 

other possible interpretation, we need not resolve whether our 

reading of § 1229b(b)(1)(C) is the only possible reading of the 

statute because our reading is consistent with the construction 

adopted by the BIA in Cortez Canales. See 25 I. & N. Dec. 

at 307 (“[I]n determining which offenses are ‘described under’

sections [1182(a)(2), 1227(a)(2), and 1227(a)(3)] for purposes 

of section [1229b(b)(1)(C)], only language specifically 

pertaining to the criminal offense, such as the offense itself 

and the sentence imposed or potentially imposed, should be 

considered. That is, . . . the statutory language of 

sections [1182(a)(2), 1227(a)(2), and 1227(a)(3)] pertaining 

only to aspects of immigration law, such as the requirement that 

the alien’s crime be committed ‘within five years . . . after 

the date of admission,’ is not considered.” (second alteration 

in original)). Thus, for the same reasons we have given for our 

reading of § 1229b(b)(1), we conclude that the BIA’s reading is 

patently reasonable and therefore entitled to deference. Accord
14

Coyomani-Cielo, 758 F.3d at 915 (holding that Cortez Canales is 

a reasonable construction of § 1229b(b)(1)(C) because “[i]t is a 

sensible way (and perhaps the only way) to give effect to each 

word of [§ 1229b(b)(1)(C)]”).

III

We find Hernandez’s various arguments against affording 

Chevron deference to the BIA’s construction unpersuasive. 

First, she notes that “[c]anons of construction ordinarily 

suggest that terms connected by a disjunctive be given separate 

meanings unless the context dictates otherwise,” United States 

v. Urban, 140 F.3d 229, 232 (3d Cir. 1998) (quoting United 

States v. 6109 Grubb Road, 886 F.2d 618, 626 (3d Cir. 1989))

(internal quotation marks omitted), and therefore she maintains

that § 1229b(b)(1)’s statutory language permitting cancellation 

of removal of “an alien who is inadmissible or deportable from 

the United States” must be read disjunctively, such that 

“inadmissible” and “deportable” are given separate meanings. 

She argues that this is especially so because “[t]he distinction 

between exclusion and deportation has long been recognized in 

immigration law.” But the BIA’s construction of 

§ 1229b(b)(1)(C) does not obliterate the distinction between

inadmissible and deportable aliens. Rather, it provides that 

any alien who meets the criteria for either inadmissibility or
15

deportability, as those terms are used throughout the 

Immigration and Nationality Act, is ineligible for cancellation 

of removal if he has “been convicted of an offense under 

section 1182(a)(2), 1227(a)(2), or 1227(a)(3).” Thus, the use 

of the disjunctive defines the class of aliens to which 

§ 1229b(b)(1)(C) is applicable, referring to both inadmissible 

and deportable aliens and treating them alike.

Second, relying on Reyes v. Holder, 714 F.3d 731 (2d Cir. 

2013), Hernandez contends that by using the terms “inadmissible”

and “deportable” in § 1229b(b)(1)(C), Congress “demonstrate[d] 

that an applicant’s admission status is critical when 

determining an alien’s eligibility for cancellation of removal.”

In Reyes, an unadmitted alien sought “special rule cancellation 

of removal,” 714 F.3d at 732, which permits the Attorney General 

to cancel the removal of qualified aliens from specific 

countries as long as they are not “inadmissible under section 

[1182(a)(2)–(3)] or deportable under section [1227(a)(2)–(4)],”

8 C.F.R. § 1240.66(b)(1). The Second Circuit held that the 

alien’s conviction of “menacing in the second degree” did not 

render him ineligible for discretionary relief, even though it 

was listed among the offenses that would render an admitted 

alien deportable under § 1227(a)(2), because the offense was not 

listed in § 1182(a). Reyes, 714 F.3d at 737. Hernandez’s 

reliance on Reyes, however, is misplaced because the language of 
16

§ 1229b(b)(1)(C) differs substantially from the language of 

8 C.F.R. § 1240.66(b)(1), which mirrors the structure of 

§ 1229b(b)(2)(A)(iv) and § 1292b(d)(1)(B). Accord CoyomaniCielo, 758 F.3d at 913-14. And the Reyes court recognized as 

much, specifically distinguishing Cortez Canales on that ground. 

Reyes, 714 F.3d at 737.

Third, Hernandez argues that the BIA’s construction 

requires rewriting the statute to read that an alien is 

ineligible for cancellation of removal if he has “been convicted 

of an offense [described] under §§ 1182(a)(2), 1227(a)(2), or 

1227(a)(3)].” But an offense can only be “under” one of the 

cross-referenced statutes if it is described or listed therein,

as those statutes are not themselves criminal statutes. Indeed, 

it is Hernandez who would rewrite the statute so as to read,

“The Attorney General may cancel removal of . . . an alien who 

is inadmissible or deportable from the United States if the 

alien . . . has not been convicted of an offense [rendering the 

alien inadmissible] under section 1182(a)(2) [or deportable 

under sections] 1227(a)(2) or 1227(a)(3).”

Fourth, Hernandez argues that the BIA’s construction “leads 

to the bizarre result that those who may have a conviction of a 

crime involving moral turpitude in another country prior to 

being admitted to the United States may be barred from ever 

applying for cancellation of removal before they have even 
17

stepped foot in the United States.” But this result is not 

bizarre, especially because § 1182(a)(2) itself provides that 

any alien who has been convicted of a crime involving moral 

turpitude, as qualified therein, is ineligible to be admitted to 

the United States. And even if this result were bizarre, it is 

not for this court to criticize Congress’ policy choices. 

Fifth, Hernandez argues that Cortez Canales is inconsistent 

with the BIA’s earlier rulings in Matter of Garcia-Hernandez,

23 I & N. Dec. 590, 592-93 (2003), and Matter of Gonzalez-Silva, 

24 I. & N. Dec. 218, 220 (2007), in which the BIA held, 

respectively, that an offense is not under § 1182(a)(2) if it is 

covered by the petit-offense exception and that an offense is 

not under § 1227(a)(2)(E)(i) if it preceded that section’s 

effective date. But this argument is no more than a 

disagreement with the way that the BIA distinguished those cases

in Cortez Canales itself. As to Garcia-Hernandez, the BIA 

explained that the petit-offense exception contains language 

pertaining to “the sentence imposed or potentially imposed” and 

that such language must be considered because it “specifically 

pertain[s] to the criminal offense.” Cortez Canales, 25 I. & N. 

Dec. at 307. And with respect to Gonzalez-Silva, the BIA 

explained that “Congress expressly stated that 

section [1227(a)(2)(E)(i)] applies only to those convictions 

occurring after . . . September 30, 1996,” and that the BIA was 
18

bound to defer to “this express statement of congressional 

intent.” Id. at 310. We conclude that the BIA’s reasons are 

not unprincipled.

Sixth and finally, Hernandez argues that the court must not 

give § 1229b(b)(1)(C) “a more expansive interpretation that 

restricts eligibility for relief to aliens facing deportation”

because “the rule of lenity stands for the proposition that 

ambiguities in deportation statutes should be construed in favor 

of the noncitizen,” Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir. 

2012). But because “[t]he rule of lenity is a last resort, not 

a primary tool of construction,” id. (alteration in original) 

(quoting United States v. Ehsan, 163 F.3d 855, 858 (4th Cir. 

1998)) (internal quotation marks omitted), it applies only where 

“there is a grievous ambiguity or uncertainty in the statute,”

id. (quoting Muscarello v. United States, 524 U.S. 125, 138–39 

(1998)) (internal quotation marks omitted). Where, as here, the 

ambiguity is not grievous, courts must defer to the BIA’s 

construction. Id.

* * * 

In sum, we hold that Hernandez is ineligible for 

cancellation of removal by virtue of having “been convicted of 

an offense under . . . § 1227(a)(2),” a crime involving moral 

turpitude, punishable by a sentence of imprisonment for one year 
19

or longer. We thus affirm the decision of the BIA and deny 

Hernandez’s petition for review.

PETITION DENIED