FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL PADILLA-ROMERO, JR., 

Petitioner, No. 07-72492

v. Agency No.  A037-803-555 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 3, 2010—Pasadena, California

Filed July 9, 2010

Before: Betty B. Fletcher and Richard A. Paez, Circuit

Judges, and Donald E. Walter, Senior District Judge.*

Per Curiam Opinion

*The Honorable Donald E. Walter, Senior United States District Judge

for the Western District of Louisiana, sitting by designation. 

9897
COUNSEL

John Richard Smith, San Diego, California, for the petitioner.

Monica G. Antoun, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

OPINION

PER CURIAM:

Rafael Padilla-Romero, Jr., petitions for review of the

Board of Immigration Appeals (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) decision holding him statutorily

ineligible for cancellation of removal. We deny the petition

for review.

PADILLA-ROMERO v. HOLDER 9899
FACTS AND PROCEDURAL HISTORY

After being caught on three separate occasions in early

1998 attempting to smuggle aliens into the United States and

at least twice falsely claiming to be a United States citizen

while doing so, Padilla-Romero was removed to Mexico. It is

undisputed that at the time he was removed Padilla-Romero

was a lawful permanent resident (“LPR”) of the United States

and met the statutory requirements for cancellation of removal

under 8 U.S.C. § 1229b(a). It is likewise undisputed that he

elected not to pursue this remedy and that the first removal

terminated his status as an LPR. Subsequently, PadillaRomero illegally reentered or attempted to illegally reenter

the United States no fewer than five times, again repeatedly

lying about his citizenship. 

At his most recent removal hearing on March 16, 2006,

Padilla-Romero asserted for the first time that he was still eligible for cancellation of removal under 8 U.S.C. § 1229b(a).

He argued that, having met in 1998 § 1229b(a)(1)’s requirement that he hold LPR status for at least five years, he

remained eligible for cancellation of removal notwithstanding

his loss of LPR status eight years before the 2006 merits hearing. The IJ held that Padilla-Romero was ineligible for cancellation of removal because § 1229b(a) is available only to an

alien with current LPR status, and ordered him removed. The

BIA affirmed without opinion.

DISCUSSION

Where the BIA affirms an IJ’s decision without opinion,

this court reviews the IJ’s decision as though it were the

BIA’s. De Mercado v. Mukasey, 566 F.3d 810, 814 n.1 (9th

Cir. 2009). We review questions of law de novo. Padash v.

INS, 358 F.3d 1161, 1168 (9th Cir. 2004).

9900 PADILLA-ROMERO v. HOLDER
I. INTERPRETATION OF “HAS BEEN” IN

§ 1229b(a)(1)

[1] 8 U.S.C. § 1229b(a) reads, in full:

(a) Cancellation of removal for certain permanent

residents. The Attorney General may cancel removal

in the case of an alien who is inadmissible or deportable from the United States if the alien—(1) has

been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the

United States continuously for 7 years after having

been admitted in any status, and (3) has not been

convicted of any aggravated felony.

“The term ‘lawfully admitted for permanent residence’ means

the status of having been lawfully accorded the privilege of

residing permanently in the United States as an immigrant in

accordance with the immigration laws, such status not having

changed.” 8 U.S.C. § 1101(a)(20) (emphasis added). We are

faced with the question of whether an alien in removal proceedings who at one time was an LPR and held that status for

at least five years but who has since lost that status remains

eligible for cancellation of removal under § 1229b(a).

Although the statute is somewhat ambiguous, we hold that

such an alien is not eligible for § 1229b(a) relief.

Padilla-Romero asserts that there is an ambiguity as to

whether an alien must currently possess LPR status to be eligible for relief due to § 1229b(a)(1)’s use of the verb tense

“has been.” As a purely grammatical matter, the use of the

present perfect tense “has been,” read in isolation from the

surrounding text of the statute, can connote either an event

occurring at an indefinite past time (“she has been to Rome”)

or continuing to the present (“she has been here for five

hours”). See, e.g., Wells, Waters & Gases, Inc. v. Air Prods.

& Chems., Inc., 19 F.3d 157, 163 (4th Cir. 1994) (noting the

ambiguity of the present perfect tense); Bryan A. Garner, GarPADILLA-ROMERO v. HOLDER 9901
ner’s Modern American Usage 802-03 (3d ed. 2009). PadillaRomero urges that we interpret “has been” to mean that an

alien is eligible for relief under § 1229b(a) if that alien has,

at any indefinite past time, held LPR status for five years. In

interpreting the statute, however, our task is to discern congressional intent. To perform that task, we do not consider

“has been” in isolation from its context. See Padash, 358 F.3d

at 1168, 1170-71.

[2] Looking at § 1229b(a)(1) as a whole, Padilla-Romero’s

proposed interpretation is a strained reading of this provision.

Under the natural reading, the text requires that an alien

applying for cancellation of removal under § 1229b(a) have

current LPR status. The definition of “lawfully admitted for

permanent residence,” which requires that the alien’s status

“not hav[e] changed,” provides strong support for this reading. 8 U.S.C. § 1101(a)(20). An interpretation of

§ 1229b(a)(1) that allowed aliens who are no longer LPRs to

obtain cancellation of removal would be counter to Congress’s intent, as expressed in § 1101(a)(20), that an alien may

lose the benefits of LPR status. The caption to § 1229b(a),

“Cancellation of removal for certain permanent residents”

also suggests a requirement that the alien have current status

as an LPR. See Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir.

2007) (“Although statutory titles are not part of the legislation, they may be instructive in putting the statute in context.”).

[3] Padilla-Romero argues that this interpretation will lead

to an absurd result when considered along with § 1229b(a)(2)

and § 1229b(d). Under § 1229b(a)(2), an alien is eligible for

cancellation of removal only if he “has resided in the United

States continuously for 7 years after having been admitted in

any status.” Padilla-Romero argues that because

§ 1229b(a)(1) and (2) both use the present perfect tense, they

must be interpreted similarly. Therefore, he argues, if “has

been an alien lawfully admitted for permanent residence”

requires that an alien have current LPR status when applying

9902 PADILLA-ROMERO v. HOLDER
for cancellation of removal, “has resided in the United States

continuously” under § 1229b(a)(2) must similarly require that

the alien currently reside in the United States when applying

for relief. Under § 1229b(d), however, an alien’s period of

continuous residence in the United States terminates when the

alien is served with a notice to appear or commits an offense

rendering him or her removable or inadmissable. Accordingly, Padilla-Romero argues, no alien could ever establish

that his residence has continued until the time of his application for relief—which necessarily comes some time after the

notice to appear or the criminal offense that terminates the

period of continuous residence—and therefore no alien could

meet § 1229b(a)(2)’s requirement. 

[4] Padilla-Romero, however, misapprehends the stop-time

provision in § 1229b(d). That provision does not terminate an

alien’s actual residence, but rather simply establishes the

point at which an alien’s residence in the United States will

stop counting toward § 1229b(a)(2)’s 7-year continuous residence requirement. Indeed, we need look no further than

§ 1229b(b)(1)(A) to see the fallacy of Padilla-Romero’s argument: If his reading of § 1229b(d) were correct, then

§ 1229b(b)(1)(A) would involve exactly the absurd result he

challenges. That section authorizes relief only if an alien “has

been physically present in the United States for a continuous

period of not less than 10 years immediately preceding the

date of [his] application,” but § 1229b(d) provides that a “period of . . . continuous physical presence in the United States

shall be deemed to end” when the alien receives a notice to

appear or commits an offense rendering him removable or

inadmissible. Thus, under Padilla-Romero’s reading of

§ 1229b(d), no alien could ever be physically present “immediately preceding” the date of his application for relief. We

conclude that the stop-time rule cannot have the meaning

Padilla-Romero asserts and thus that no absurdity results from

our interpretation of § 1229b(a)(1). Rather, it is PadillaRomero’s interpretation, which would both encourage illegal

reentry and allow aliens who have lost LPR status decades

PADILLA-ROMERO v. HOLDER 9903
ago to regain that status merely by crossing the border, that

would produce absurd results.

[5] In light of the foregoing, the inclusion in

§ 1229b(b)(1)(A) of an express requirement that an alien’s

period of continuous physical presence be “immediately preceding” the application for cancellation of removal does not

undermine our interpretation of § 1229b(a)(1). Section

1229b(a)(1), when read as a whole and in the context of the

definition of “lawfully admitted for permanent residence,” is

sufficiently clear that such additional text would be superfluous.1

 The legislative history of § 1229b(a) also supports this

conclusion. In Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,

1027-28 (9th Cir. 2005), we explained that Congress enacted

the current § 1229b(a) to resolve a circuit split as to when

time began to accrue for purposes of cancellation of removal.

There is no suggestion that Congress intended to remove the

requirement in former Immigration and Nationality Act

§ 212(c), which the text of current § 1229b(a) replaced, that

an alien applying for cancellation currently have the status of

an LPR. Cf. Cuevas-Gaspar, 430 F.3d at 1028 (concluding

that Congress’s intent was to resolve this circuit split and

rejecting the BIA’s argument that it intended a substantive

change on an unrelated issue).

II. THE BOARD’S PROCEDURE TO AFFIRM 

WITHOUT OPINION

Padilla-Romero argues that the BIA’s decision to affirm

without opinion in this case was a violation of the BIA’s regulations, and thus violated due process and the APA. Since we

decide his claim on the merits, this argument has no force. See

Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.

2003) (“The decision to streamline [is] indistinguishable from

the merits.”).

PETITION DENIED.

1Padilla-Romero concedes that the context of a statute can render such

explicit text unnecessary. 

9904 PADILLA-ROMERO v. HOLDER