FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GARCIA-JIMENEZ,  No. 03-74625

Petitioner, Agency No.

v. A93-143-043

ALBERTO R. GONZALES, Attorney ORDER

General,  AMENDING

Respondent. OPINION AND

AMENDED

OPINION AND

DISSENT 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 7, 2006*

Pasadena, California

Filed January 3, 2007

Amended May 30, 2007

Before: Harry Pregerson, Barry G. Silverman and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Silverman;

Dissent by Judge Pregerson

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

6387
COUNSEL

Noemi G. Ramirez, The Pacific Center, Los Angeles, California, for the petitioner.

Peter D. Keisler, Terri J. Scadron, and Leslie McKay, Office

of Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C., for the respondent.

GARCIA-JIMENEZ v. GONZALES 6389
ORDER

Judges Silverman and Tallman voted to deny the petition

for rehearing en banc and Judge Pregerson voted to grant it.

No judge has made an en banc call. 

The opinion filed January 3, 2007, and appearing at 472

F.3d 679 (9th Cir. 2007), is hereby amended to include a dissent by Judge Pregerson. Pursuant to General Order 5.3.a, an

amended opinion showing that Judge Pregerson no longer

joins the majority opinion and now dissents is filed contemporaneously with this order. No subsequent petition for rehearing or petition for rehearing en banc may be filed as to the

amended opinion. 

OPINION

SILVERMAN, Circuit Judge: 

The government charged petitioner Jose Garcia-Jimenez

with being removable on account of, first, two prior criminal

convictions occurring in the mid-1990s, and, second, a recent

attempt to smuggle undocumented aliens into the country.

Garcia-Jimenez’s criminal convictions occurred before Congress replaced the Immigration and Nationality Act’s waiver

of deportation provisions with the more stringent cancellation

of removal provisions. Accordingly, he was entitled to apply

for, and did receive, a waiver as to his convictions. The Immigration Judge, however, denied relief as to the alien smuggling charge. She applied 8 U.S.C. § 1229b(c)(6), which

precludes cancellation of removal in cases where the alien has

been granted a waiver of deportation. We hold today that

§ 1229b(c)(6) bars an alien from obtaining cancellation of

removal if he has ever received a waiver of deportation, even

if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought. The statute

6390 GARCIA-JIMENEZ v. GONZALES
prohibits an alien from receiving both waiver of deportation

and cancellation of removal. Therefore, we deny GarciaJimenez’s petition for review.

I. BACKGROUND

Garcia-Jimenez is a native and citizen of Mexico. He

obtained temporary resident status in November 1988, and his

status was adjusted to that of legal permanent resident on

December 1, 1990. 

On June 8, 1995, Garcia-Jimenez pled guilty to corporal

injury of a spouse in violation of California Penal Code

§ 273.5(a). On March 27, 1996, he pled guilty to possession

of cocaine in violation of California Health & Safety Code

§ 11350(a). On May 27, 2000, Garcia-Jimenez came to the

attention of the immigration authorities when he attempted to

smuggle his sister-in-law and niece into the United States at

the San Ysidro Port of Entry. 

On June 15, 2000, the former Immigration and Naturalization Service (“INS”) initiated removal proceedings against

Garcia-Jimenez under 8 U.S.C. § 1182(a)(2)(A)(i)(I) & (II),

charging him with removability on account of his committing

a crime of moral turpitude (i.e., the domestic violence conviction) and a controlled substance violation. On February 19,

2002, the INS also charged Garcia-Jimenez with removability

under § 1182(a)(6)(E)(i) arising out of the smuggling incident

on May 27, 2000. 

Garcia-Jimenez conceded removability. Because he pled

guilty to both state charges before Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-597,

which abolished waiver of deportation under former § 212(c)

of the Immigration and Nationality Act (codified at 8 U.S.C.

§ 1182(c) (repealed 1996)) and instituted cancellation of

removal, he was entitled to seek § 212(c) relief as to those

GARCIA-JIMENEZ v. GONZALES 6391
charges. See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (holding

retroactive application of the Act’s bar to former § 212(c)

relief would have an impermissible retroactive effect on certain lawful permanent residents).1

 The alien smuggling incident, however, occurred after IIRIRA’s enactment, so, to

avoid removal based on that charge, Garcia-Jimenez had to

seek cancellation of removal under 8 U.S.C. § 1229b(a).2 The

IJ denied cancellation of removal, and ordered GarciaJimenez removed to Mexico. 

The Board of Immigration Appeals (“BIA”) affirmed, reasoning that § 1229b(c)(6) “explicitly states that an alien is

ineligible for cancellation of removal if he has been granted

relief under section 212(c),” and thus “the Immigration Judge

correctly found [Garcia-Jimenez] to be ineligible for cancellation of removal because he was granted relief under section

212(c) of the Act.” Garcia-Jimenez filed this timely petition

for review. 

1The Board of Immigration Appeals construed § 212(c) to afford permanent resident aliens a discretionary waiver of deportation if they had lived

in the country for seven consecutive years and had not been convicted of

an aggravated felony. 

2Cancellation of removal is available to an alien who has been a lawful

permanent resident for at least five years, has resided continuously in the

country for seven years, and has no conviction for an expanded universe

of aggravated felonies. 8 U.S.C. § 1229b(a). The IJ determined that

Garcia-Jimenez was not eligible for cancellation of removal as to his second conviction because his first conviction in 1995 for spousal abuse constituted a crime of moral turpitude, triggering IIRIRA’s new “stop-time”

provision and ending his run of “continuous physical presence” in the

United States. See § 1229b(d)(1) (“any period of continuous physical presence . . . end[s] when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible”). Thus,

when he was convicted for a controlled substance violation in 1996,

Garcia-Jimenez could no longer meet the seven-year residency requirement. 

6392 GARCIA-JIMENEZ v. GONZALES
II. JURISDICTION

[1] The Immigration and Nationality Act ordinarily divests

the court of appeals of jurisdiction to review any “final order

of removal” against an alien who, like Garcia-Jimenez, has

been found removable for committing a crime of moral turpitude or a controlled substance violation. 8 U.S.C.

§ 1252(a)(2)(C). The Act, however, states that “[n]othing

[herein] . . . which limits or eliminates judicial review shall

be construed as precluding review of constitutional claims or

questions of law raised upon a petition for review.” Id.

§ 1252(a)(2)(D). The issue that Garcia-Jimenez raises in his

petition is a question of law — whether § 1229b(c)(6) bars

him from simultaneously obtaining both a waiver of deportation under § 212(c) and cancellation of removal under

§ 1229b(a). Therefore, we have jurisdiction to review his petition. 

III. THE MERITS

[2] Section 1229b(c)(6) provides that cancellation of

removal is not available to:

[a]n alien whose removal has previously been cancelled under this section or whose deportation was

suspended under section 1254(a) of this title or who

has been granted relief under [§ 212(c)] of this title,

as such sections were in effect before September 30,

1996. 

Latching onto the word “previously,” Garcia-Jimenez argues

that § 1229b(c)(6) does not apply to him because he was

granted § 212(c) relief in the same proceeding in which he

sought cancellation of removal, not in a previous proceeding.

Garcia-Jimenez misreads the statute. 

[3] The plain language of the statute controls. See FloresArellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993) (applying the

GARCIA-JIMENEZ v. GONZALES 6393
Act’s plain language; “[t]he provision is not ambiguous, nor

does its plain language lead to absurd results or internal statutory inconsistencies.”). Section 1229b(c)(6) mentions three

forms of relief — cancellation of removal, suspension of

deportation under § 1254, and waiver of deportation under the

former § 212(c). Congress inserted the word “or” into

§ 1229b(c)(6) in such a way as to create three different

classes of aliens, each of which is the beneficiary of one of

those three forms of relief. And the word “previously”

appears in the part of the statute that identifies the first class

of aliens, but not the second or third. See § 1229b(c)(6) (disqualifying “an alien whose removal has previously been cancelled under this section or . . . who has been granted relief

under [§ 212(c)]” (emphasis added)). We will not ignore such

a clear distinction in the statute. That is, with respect to grants

of § 212(c) relief, § 1229b(c)(6)’s bar on further relief does

not depend on when the alien received his waiver; it is sufficient if a waiver of deportation “has been granted.”

3

§ 1229b(c)(6). Indeed, we said as much in MaldonadoGalindo v. Gonzales, 456 F.3d 1064, 1067 (9th Cir. 2006): 

The statute is not ambiguous. Congress’s language

indicates as clearly as words can state that any

receipt of § 212(c) relief will foreclose

[§ 1229b(c)(6)] relief: cancellation of removal is

unavailable to ‘[a]n alien whose removal has previously been cancelled under this section . . . or who

has been granted relief under [§ 212(c)] . . . .’ 

Id.

4

 It is irrelevant that an alien may simultaneously apply for

adjustment of status and § 212(c) relief. 

3We offer no opinion as to what “previously” means with respect to

aliens who initially received cancellation of removal. 

4At issue in Maldonado-Galindo was whether § 1229b(c)(6) bars cancellation of removal for those aliens granted § 212(c) relief before

IIRIRA’s enactment. We held that, even if Congress did not “clearly indicate” in the statute that cancellation of removal is unavailable to an alien

who received § 212(c) relief before IIRIRA’s enactment, § 1229b(c)(6)

does not have an impermissible retroactive effect. Id. at 1068. 

6394 GARCIA-JIMENEZ v. GONZALES
The Eighth Circuit has come to the same conclusion. In

Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006), the

petitioner argued that his procedural due process rights were

violated when the immigration judge ruled that § 1229b(c)(6)

barred him from simultaneously obtaining § 212(c) relief and

cancellation of removal. Id. at 350. The court held that “Congress intended to deny [cancellation of removal] to aliens who

commit multiple deportable offenses. Therefore, it does not

matter when the discretionary § 212(c) relief is granted; it disqualifies the alien from [§ 1229b] relief for a second, postIIRIRA offense.” Id. 

[4] By enacting § 1229b(c)(6), Congress made its intention

clear: an alien who has received § 212(c) relief — at any time

— cannot also receive § 1229b relief. Garcia-Jimenez was eligible for one form of relief or the other, but not both.

IV. CONCLUSION

[5] The BIA correctly held that 8 U.S.C. § 1229b(c)(6)

barred Garcia-Jimenez from seeking cancellation of removal.

The petition for review is DENIED. 

PREGERSON, Circuit Judge, dissenting: 

Garcia-Jimenez is not a man with a clean record. He has

two convictions, and there is evidence that he engaged in

alien smuggling. In June 1995, Garcia-Jimenez pled guilty to

corporal injury of a spouse. In March 1996, he pled guilty to

possession of cocaine. In May 2000, he allegedly attempted

to smuggle his sister-in-law and niece into the United States.

On June 15, 2000, the former INS initiated removal proceedings against Garcia-Jimenez based on his convictions for

domestic violence and drug possession. On February 19,

2002, the INS added a removability charge based on the

GARCIA-JIMENEZ v. GONZALES 6395
smuggling incident. All charges were before the IJ at one

hearing. Garcia-Jimenez conceded removability, but sought

both suspension of deportation and cancellation of removal.

These two forms of relief are largely equivalent. In 1996,

Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-

208, 110 Stat. 3009-597. That statute replaced the suspension

of deportation process with the more stringent cancellation of

removal process. 

Because Garcia-Jimenez pled guilty to the domestic violence and drug charges before Congress enacted IIRIRA, he

was eligible for a waiver of deportation under former

§ 212(c). The smuggling incident, however, occurred after

IIRIRA. Therefore, with regards to the smuggling incident,

Garcia-Jimenez was not eligible for § 212(c) relief and had to

apply for cancellation of removal under § 1229b(a). The BIA

held, however, that Garcia-Jimenez was not eligible for cancellation of removal because he had already received a waiver

for suspension of deportation under § 212(c).1

Section 1229b(c)(6) provides that cancellation of removal

is not available to:

[a]n alien whose removal has previously been cancelled under this section or whose deportation was

suspended under section 1254(a) of this title or who

has been granted relief under [§ 212(c)] of this title,

1

It appears from the record that there are many reasons why GarciaJimenez would not be eligible for cancellation of removal. However, as

the BIA denied relief based on § 1229b(c)(6), we limit our review to that

provision. Even if we overturn the BIA’s decision based on that issue, it

is unlikely that Garcia-Jimenez would ultimately obtain the relief he seeks.

We are not concerned here with his general eligibility under the cancellation of removal statute. Instead, we are examining the effect of

§ 1229b(c)(6) where a petitioner simultaneously seeks relief under the preIIRIRA suspension of deportation rules and the post-IIRIRA cancellation

of removal rules. 

6396 GARCIA-JIMENEZ v. GONZALES
as such sections were in effect before September 30,

1996. 

Garcia-Jimenez argues that § 1229b(c)(6) does not apply to

him because he was granted § 212(c) relief in the same proceeding in which he sought cancellation of removal, not in a

previous proceeding. I agree. 

The majority opinion reads the word “previously” to refer

only to a situation where an alien was granted relief under 8

U.S.C. § 1254. Section 1229b(c)(6) mentions three forms of

relief: cancellation of removal under § 1229b(a), suspension

of deportation under § 1254, and waiver of deportation under

former § 212(c). As the majority explains, Congress used the

word “or” in § 1229b(c)(6) to create three different classes of

aliens. (Maj. Op. 6394.) The majority argues that the word

“previously” appears in the part of the statute that identifies

the first class of aliens, but not in the portion of the statute

referring to the second or third classes of aliens. (Maj. Op.

6394.) 

There is little support for the argument that Congress

intended this section to apply to events occurring in a single

immigration proceeding. Such a reading of the statute is

untenable. It leads to an absurd result in situations like the

case before us where an IJ does not reach the merits of an

alien’s petition simply because of the dates on which certain

incidents occurred. Had all of Garcia-Jimenez’s infractions

occurred before September 30, 1996 (the effective date of

IIRIRA), he would have been eligible to apply for a waiver

of deportation. Had all of his infractions occurred after September 30, 1996, he would have been eligible to apply for

cancellation of removal. Instead his infractions straddle this

date, and the BIA denied review on the merits. 

It is illogical to conclude that Garcia-Jimenez was “previously . . . granted relief under [§ 212(c)],” § 1229b(c)(6)

(emphasis added), when that grant was part of the same proGARCIA-JIMENEZ v. GONZALES 6397
ceeding where he applied for cancellation of removal. Construing “previously” narrowly to include decisions occurring

in the same proceeding, effectively prevents any alien with

multiple infractions on his record from even petitioning for

appropriate relief. Taking the example before us: The IJ could

have first granted a § 212(c) waiver of Garcia-Jimenez’s

domestic violence conviction. The IJ could have then

refrained from evaluating the cocaine conviction because the

IJ “previously” granted relief under § 212(c). This unreasonable result would be the effect of allowing “previously” to

cover decisions made in the context of a single proceeding. 

I agree with the petitioner’s argument that “previously” in

§ 1229b(c)(6) must refer to a previous proceeding, not something that happened only minutes earlier within the same proceeding. This conclusion is further supported by the fact that

all the forms of relief that Congress included in § 1229b(c)(6)

are listed in the past tense: “an alien whose removal has previously been cancelled under this section or whose deportation

was suspended under section 1254(a) of this title or who has

been granted relief under [§ 212(c)].” Congress’s use of the

past tense in the statute supports the argument that the term

“previously” refers to a proceeding that occurred in the past,

and not a proceeding currently before the agency. 

Accordingly, I respectfully dissent. I would hold the BIA

incorrectly held that 8 U.S.C. § 1229b(c)(6) barred GarciaJimenez from seeking cancellation of removal. I would grant

the petition for review and remand this case to the BIA for

consideration of Garcia-Jimenez’s petition for cancellation of

removal on the merits. 

6398 GARCIA-JIMENEZ v. GONZALES