FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO GUERRERO-ROQUE,

Petitioner,

v.

LORETTA E. LYNCH,

U.S. Attorney General,

Respondent.

No. 14-72082

Agency No. 

A090-638-308

OPINION

Petition for Review of a Decision of the

Board of Immigration Appeals

Submitted November 18, 2016*

San Francisco, California

Filed January 9, 2017

Before: Alex Kozinski, Ronald Lee Gilman,

**

and Michelle T. Friedland, Circuit Judges.

Per Curiam Opinion

 * The panel unanimously concludes that this case is suitable for 

decision without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Ronald Lee Gilman, United States Circuit Judge 

for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 GUERRERO-ROQUE V. LYNCH

SUMMARY***

Immigration

The panel denied Francisco Guerrero-Roque’s petition 

for review of the Board of Immigration Appeals’ decision 

finding him ineligible for cancellation of removal because 

he was convicted of several crimes involving either moral 

turpitude or a controlled substance.

The panel held that the waiver of inadmissibility 

authority provided in INA § 212(h) cannot excuse 

convictions that bar an alien from cancellation relief under 

INA § 240A(b). The panel also noted that Guerrero was 

found inadmissible not on the grounds of his convictions but 

because he entered without inspection, and that the § 212(h) 

waiver provision consequently could not apply to his 

inadmissibility finding. The panel also held that Guerrero’s 

shoplifting convictions preclude him from seeking 

cancellation, and declined to reach his argument that treating 

his possession of marijuana conviction as a bar to 

cancellation is arbitrary and capricious.

COUNSEL

Seth L. Reszko, Rez Athari & Associates, Las Vegas, 

Nevada, for Petitioner.

 *** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GUERRERO-ROQUE V. LYNCH 3

Tiffany L. Walters, Trial Attorney; Jesse M. Bless, Senior 

Litigation Counsel; Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

PER CURIAM:

Francisco Guerrero-Roque is a native and citizen of 

Mexico. After he illegally entered the United States in 1980 

and was deported in 1985, he returned to the United States 

without permission in 2003. An Immigration Judge (IJ) later 

determined that Guerrero was inadmissible because he had 

been neither admitted nor paroled into the United States, and 

that he was consequently subject to removal. During the 

pendency of his removal proceedings, Guerrero filed an 

application for cancellation of removal. He was deemed 

ineligible for such relief because he had been convicted of 

several crimes in the state of Washington involving either 

moral turpitude or a controlled substance.

Guerrero argues that he was improperly denied the 

opportunity to seek cancellation of removal. For the reasons 

set forth below, we deny Guerrero’s petition for review.

I.

Two weeks after Guerrero reentered the United States 

without permission in 2003, the Immigration and 

Naturalization Service (INS) charged Guerrero with being 

removable as an alien present in the country without having 

been either admitted or paroled. See Immigration and 

Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. 
4 GUERRERO-ROQUE V. LYNCH

§ 1182(a)(6)(A)(i). An IJ found that Guerrero was subject 

to removal based on Guerrero’s admission to the factual 

basis of the INS’s charge.

Guerrero then applied for cancellation of removal 

pursuant to INA § 240A(b). Under INA § 240A(b)(1)(C), 

8 U.S.C. § 1229b(b), an alien subject to an order of removal 

may obtain cancellation of that order only if, among other 

things, he “has not been convicted of an offense under 

section [212](a)(2).” Among the offenses listed in INA 

§ 212(a)(2) are “a crime involving moral turpitude,” and “a 

violation of . . . any law . . . relating to a controlled 

substance.” Guerrero admitted in his application that he had 

been previously convicted of four shoplifting offenses and a 

marijuana possession offense in the state of Washington.

After a series of protracted hearings and appeals that are 

irrelevant to the disposition of this case, the IJ denied 

Guerrero’s application for cancellation of removal in 

February 2013. The IJ concluded that Guerrero’s four 

shoplifting convictions constituted crimes involving moral 

turpitude (a conclusion not contested by Guerrero on appeal) 

and that those convictions, as well as his controlled 

substance conviction, disqualified Guerrero from seeking 

cancellation of removal under INA § 240A(b). Guerrero 

was consequently ordered removed.

The Board of Immigration Appeals (BIA) affirmed the 

IJ’s decision in June 2014. Grounding its decision in Matter 

of Bustamante, 25 I. & N. Dec. 564 (BIA 2011), the BIA 

concluded that Guerrero could not rely upon INA § 212(h) 

(which gives the Attorney General limited discretion to 

waive certain grounds of inadmissibility) to seek a waiver of 

his convictions for cancellation of removal purposes. This 

timely petition for review followed.
GUERRERO-ROQUE V. LYNCH 5

II.

A. Standard of review

We typically review questions of law de novo. CabreraAlvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005).

B. Section 212(h) waivers and cancellation of removal

Guerrero asks us to hold that the waiver of 

inadmissibility provision in INA § 212(h) can be used to 

excuse the convictions that disqualify him from cancellation 

of removal relief under INA § 240A(b). He concedes, 

however, that there is no legal authority to support his 

position. We agree that no legal authority supports this 

position, and we hold that the waiver authority provided in 

INA § 212(h) does not nullify a conviction that disqualifies 

an alien from cancellation of removal under INA § 240A(b).

INA § 212(a)(2)(A)(i) provides in relevant part that “any 

alien convicted of . . . a crime involving moral turpitude . . . 

or . . . a violation of . . . any law . . . relating to a controlled 

substance . . . is inadmissible.” INA § 212(a)(2)(A)(i)(I), 

(II), 8 U.S.C. § 1182(a)(2)(A)(i)(I), (II). The Attorney 

General, however, “may, in his discretion, waive the 

application of subparagraph[] (A)(i)(I) . . . of subsection 

(a)(2) of this section and subparagraph (A)(i)(II) of such 

subsection” if the alien or offense meets certain criteria. 

INA § 212(h), 8 U.S.C. § 1182(h). By referring specifically 

to the subsections of INA § 212 designating disqualifying 

offenses for admission, INA § 212(h) has the effect of 

excusing a prior crime involving moral turpitude or certain 

controlled substance convictions for purposes of being 

admitted. Id. Section 212(h) thus allows an alien whose 

inadmissibility determination is based on the criminal 

conduct specified in INA § 212(a)(2) to receive a waiver of 
6 GUERRERO-ROQUE V. LYNCH

that ground of inadmissibility, in the Attorney General’s 

discretion. See, e.g., Hing Sum v. Holder, 602 F.3d 1092, 

1094 (9th Cir. 2010).

Guerrero was found to be inadmissible, however, not on 

the grounds of his shoplifting or marijuana possession 

convictions (although those offenses could have served as an 

independent basis for such a finding), but because he entered 

without inspection. See INA § 212(a)(6)(A)(i), 8 U.S.C. 

§ 1182(a)(6)(A)(i). The § 212(h) waiver provision 

consequently does not apply to his inadmissibility finding.

Guerrero argues, however, that his right to seek a waiver 

under § 212(h) should apply to both INA § 212(a)(2) (as a 

waiver of a ground of inadmissibility) and § 240A(b) (as a 

waiver of a bar to cancellation of removal). He believes that 

he should be able to pursue a waiver under § 212(h) of his

prior convictions, such that they would no longer disqualify 

him from cancellation of removal under INA § 240A(b). 

Guerrero’s belief is derived from the fact that both INA 

§ 240A(b) (the cancellation of removal statute) and § 212(h) 

(the waiver statute) refer to INA § 212(a)(2) (the 

disqualifying offenses for admissibility statute).

But the plain language of the cancellation of removal 

statute precludes this argument. Among other prerequisites, 

INA § 240A(b)(1)(C) provides that the Attorney General 

may cancel removal if the alien “has not been convicted of 

an offense under section [212](a)(2).” (Emphasis added.) If 

an alien has a conviction for an offense listed in INA 

§ 212(a)(2), then he is not eligible for cancellation of 

removal. The statute simply does not refer to, or incorporate 

by reference, the inadmissibility waiver authority provided 

in INA § 212(h). Were we to permit the Attorney General 

to waive Guerrero’s disqualifying convictions for 

cancellation of removal purposes, INA § 240A(b)(1)(C)’s 
GUERRERO-ROQUE V. LYNCH 7

express requirement that an alien “not be[] convicted of an 

offense under [INA § 212](a)(2)” would be rendered a 

nullity. (Emphasis added.) As the Seventh Circuit has 

observed,

the cancellation of removal provision does 

not reference § [212] as a whole, but rather 

references one distinct subsection, 

§ [212](a)(2). Nothing in that subsection 

incorporates the waiver provision in 

§ [212](h). There is no reason to believe that 

other provisions of the inadmissibility 

statutory provision were incorporated into the 

cancellation of removal provision, and such 

an interpretation is inconsistent with a plain 

language reading.

Barma v. Holder, 640 F.3d 749, 752 (7th Cir. 2011). We 

agree with the Seventh Circuit’s analysis.

Indeed, this court came to substantially the same 

conclusion in Becker v. Gonzales, 473 F.3d 1000, 1003-04 

(9th Cir. 2007), in which we held that waivers of grounds for 

deportability did not serve as a basis for excusing 

convictions for cancellation of removal. The grounds for 

waiver of both inadmissibility and deportability are limited 

in their application and may not be used to waive a 

conviction that bars relief under INA § 240A(b). As this 

court has explained in another related context, “[a] statute 

giving the Attorney General discretion to grant relief from 

inadmissibility does not give the Attorney General discretion 

to grant relief from removal.” Sanchez v. Holder, 560 F.3d 

1028, 1032 (9th Cir. 2009) (en banc).

Because the language of the cancellation of removal 

statute is unambiguous, “that is the end of the matter,” 
8 GUERRERO-ROQUE V. LYNCH

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837, 842 (1984). The INA § 212(h) waiver 

provision may not be used to excuse convictions that bar 

relief under INA § 240A(b). INA § 212(h) permits the 

Attorney General to waive only a ground of inadmissibility; 

it cannot waive a conviction that bars cancellation of 

removal. Because Guerrero’s shoplifting convictions 

preclude him from seeking cancellation of removal, we 

decline to reach his argument that treating a conviction for 

the possession of marijuana as a bar to cancellation of 

removal is arbitrary and capricious.

III.

For the foregoing reasons, we DENY Guerrero’s petition 

for review.