FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEVERIANO VASQUEZ-HERNANDEZ, 

Petitioner, No. 05-74392

v. Agency No.  A078-018-615 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 2, 2009—Pasadena, California

Filed January 6, 2010

Before: Thomas G. Nelson, Jay S. Bybee and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Thomas G. Nelson

419
COUNSEL

Robert F. Jacobs, Downey, California, for the petitioner.

Lyle D. Jentzer, Department of Justice, Washington, D.C., for

the respondent. 

VASQUEZ-HERNANDEZ v. HOLDER 421
OPINION

T.G. NELSON, Circuit Judge:

Severiano Vasquez-Hernandez petitions for review of the

Board of Immigration Appeals’ (“BIA”) decision denying his

appeal from the Immigration Judge’s (“IJ”) order denying his

motion to reopen.1 The IJ held that Vasquez-Hernandez was

statutorily ineligible under 8 U.S.C. § 1229b(b) for cancellation of removal based on his conviction for corporal injury to

a spouse, an offense described in 8 U.S.C. § 1227(a)(2), and

held that the petty offense exception in 8 U.S.C. § 1182(a)(2)

was inapplicable to Vasquez-Hernandez. We deny the petition

for review.

I. BACKGROUND

Vasquez-Hernandez is a native and citizen of Mexico who

entered the United States illegally in July 1988. On August 8,

2002, Vasquez-Hernandez was convicted in the Orange

County Superior Court of violating California Penal Code

§ 273.5, corporal injury to a spouse. The trial court sentenced

him to fourteen days in jail, eight hours of community service,

and three years probation. Under § 273.5, the sentence could

not have exceeded one year. 

On August 9, 2002, the Immigration and Naturalization

Service (“INS”), now Immigration and Customs Enforcement

(“ICE”), charged Vasquez-Hernandez as being removable

under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the

United States without being admitted or paroled. VasquezHernandez conceded removability. In August 2004, the IJ pretermitted Vasquez-Hernandez’s request for cancellation of

removal, finding that Vasquez-Hernandez was statutorily inel1Vasquez-Hernandez also appealed the decision of the Administrative

Appeals Office regarding the cancellation of his bond. By agreement of

the parties, this issue is no longer before us. 

422 VASQUEZ-HERNANDEZ v. HOLDER
igible for cancellation of removal under 8 U.S.C. § 1229b(b)

because he had been convicted of a crime of domestic violence as defined in 8 U.S.C. § 1227(a)(2)(E).

The IJ denied Vasquez-Hernandez’s motion to reopen,

finding that the petty offense exception in 8 U.S.C.

§ 1182(a)(2)(A)(ii) did not apply to Vasquez-Hernandez’s

conviction. Therefore, the IJ found Vasquez-Hernandez statutorily ineligible for cancellation of removal. The BIA

affirmed. Vasquez-Hernandez filed a timely petition for

review with this court.

II. STANDARD OF REVIEW

As the BIA adopted the IJ’s decision and also added its

own reasons, we review both decisions. Nuru v. Gonzales,

404 F.3d 1207, 1215 (9th Cir. 2005). We review the denial of

a motion to reopen for abuse of discretion and questions of

law de novo. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005).

III. DISCUSSION

The question here is whether the petty offense exception

found in 8 U.S.C. § 1182(a)(2)(A)(ii) is applicable to an 8

U.S.C. § 1229b(b) cancellation of removal request if that

request is otherwise barred by an alien’s conviction for an

offense described in § 1227(a)(2) or § 1227(a)(3).2

The cancellation of removal argument before us is understandable only by reference to the statutory scheme that governs removability and cancellation of removal. Before an

alien is removed from the United States, a court usually completes two separate inquiries. First, a court must find that an

2We do not decide whether the § 1182(a)(2) petty offense exception

applies to cancellation of removal if the § 1229b(b) ineligibility offense is

one described in § 1182(a)(2). 

VASQUEZ-HERNANDEZ v. HOLDER 423
alien is removable. Second, a court may find that some other

kind of statutory relief prevents removal. One of these

grounds of relief is called cancellation of removal. Distinguishing, therefore, between the removal statutes, § 1182 and

§ 1227, and the cancellation of removal statute, § 1229b, is

important here. 

[1] Whether an alien is removable in the first instance

depends on whether the alien is inadmissible or deportable.

An inadmissible alien is one who was not admitted legally to

the United States and is removable under § 1182, whereas a

deportable alien is in the United States lawfully and is removable under § 1227. Each section contains criminal offense categories that render the alien removable. See 8 U.S.C.

§§ 1182(a)(2), 1227(a)(2). Section 1182(a)(2) also contains a

provision known as the “petty offense exception,”

§ 1182(a)(2)(A)(ii), which disallows removal under

§ 1182(a)(2) if the conviction meets certain requirements.3

[2] Once an alien is found removable, the alien may seek

relief from removal through cancellation of removal under

§ 1229b(b). See 8 U.S.C. § 1229b(b). Cancellation of removal

is available for both inadmissible and deportable aliens.

Unlike the removal statutes, the cancellation of removal statute does not treat inadmissible and deportable aliens differently. Rather, the requirements for cancellation of removal

apply regardless of whether the alien is inadmissible or

deportable for removal purposes. See Gonzalez-Gonzalez v.

Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (holding that an

alien is statutorily ineligible for cancellation of removal if the

alien is convicted of an offense described in either

3

If § 1182(a)(2) was the basis for Vasquez-Hernandez’s removability,

the petty offense exception may have applied in determining whether

Vasquez-Hernandez was removable. However, the basis for VasquezHernandez’s removability is not § 1182(a)(2), but rather is § 1182(a)(6),

presence in the United States without admission or parole. Section

1182(a)(2)’s petty offense exception is therefore inapplicable in determining his removability. 

424 VASQUEZ-HERNANDEZ v. HOLDER
§ 1182(a)(2) or § 1227(a)(2), regardless of the alien’s status

as inadmissible or deportable).

[3] Cancellation of removal is available if the alien demonstrates: (1) continuous physical presence in the United States

for at least ten years; (2) good moral character; (3) no conviction for an offense described in §§ 1182(a)(2), 1227(a)(2), or

1227(a)(3); and (4) extreme and unusual hardship to a family

member. 8 U.S.C. § 1229b(b). The third requirement—no

conviction for an offense described in one of the removal statutes at §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)—is at issue

here.

[4] With this background in mind, we turn to the present

case. Vasquez-Hernandez is removable as an inadmissible

alien under § 1182(a)(6). He seeks cancellation of removal

under § 1229b(b). He has, however, been convicted of an

offense described in § 1227(a)(2)—a crime of domestic

violence—which, under the plain terms of § 1229b(b), makes

him ineligible for cancellation of removal. See 8 U.S.C.

§ 1229b(b). 

Vasquez-Hernandez urges us to apply, in the cancellation

of removal context, the petty offense exception that is applicable in the removal context, and thereby apply the petty

offense exception to the domestic violence offense that renders him ineligible for cancellation of removal. The statutory

language and our precedent preclude this result.

[5] The petty offense exception is set forth in the removal

statutes at § 1182(a)(2)(A)(ii). The language of the exception

limits itself by referencing only those offenses described in

the preceding clause, § 1182(a)(2)(A)(i)(I). See 8 U.S.C.

§ 1182(a)(2)(A)(ii) (“Clause (i)(I) shall not apply to an alien

who committed only one crime” if the conviction meets the

requirements for the petty offense exception). The petty

offense exception does not reference § 1227(a)(2) or

§ 1229b(b), nor is there any other statutory basis for applying

VASQUEZ-HERNANDEZ v. HOLDER 425
the petty offense exception here. We therefore hold that the

petty offense exception is not applicable to VasquezHernandez’s § 1227(a)(2) domestic violence offense, and that

Vasquez-Hernandez is ineligible for cancellation of removal

under § 1229b(b).

[6] We appreciate the potential for confusion caused by the

fact that the offenses described in the cancellation of removal

statute, § 1229b(b), cross-reference the removal statutes, but

as this court noted in Gonzalez-Gonzalez, the cancellation of

removal statute “indicates that it should be read to crossreference a list of offenses[,] rather than the [removal] statutes

as a whole.” 390 F.3d at 652. Each of the cross-referenced

offense sections is a separate barrier to cancellation of

removal. Consequently, a conviction for an offense described

in § 1227(a)(2) that may meet the requirements of the petty

offense exception in § 1182(a)(2) is still a bar to cancellation

of removal.

Vasquez-Hernandez relies on In re Garcia-Hernandez, 23

I. &. N. Dec. 590 (BIA 2003), in which the BIA held that an

inadmissible alien convicted of a crime of domestic violence

was entitled to use the petty offense exception in

§ 1182(a)(2)(A)(ii) for cancellation of removal purposes. Id.

at 592. For three reasons, this reliance is misplaced. First, the

petitioner in In re Garcia-Hernandez would have been ineligible for cancellation of removal because of an offense

described in § 1182(a)(2), a crime of moral turpitude, not

because of an offense described in § 1227(a)(2), as was

Vasquez-Hernandez. Although both the petitioner in In re

Garcia-Hernandez and Vasquez-Hernandez were convicted

of violating the same California Penal Code section, 273.5,

this is irrelevant for cancellation of removal purposes because

that offense meets the criteria set forth in both § 1182(a)(2)

and § 1227(a)(2). Second, and more importantly, the BIA

decided In re Garcia-Hernandez before this court’s ruling in

Gonzalez-Gonzalez, which clarified that an inadmissible alien

is ineligible for cancellation of removal not just for offenses

426 VASQUEZ-HERNANDEZ v. HOLDER
described in § 1182(a)(2), but also for offenses described in

§ 1227(a)(2) or § 1227(a)(3). Third, allowing an inadmissible

alien to use the petty offense exception for cancellation of

removal purposes when a deportable alien may not leads to an

unacceptable result: that illegal entrants’ requests for cancellation of removal are treated more favorably than those from

legal entrants. See Gonzalez-Gonzalez, 390 F.3d at 652-53.

[7] Here, Vasquez-Hernandez’s conviction for corporal

injury to a spouse under California Penal Code § 273.5 is an

offense described in § 1227(a)(2). Regardless of whether his

conviction may meet the requirements of the petty offense

exception in § 1182(a)(2)(A)(ii), Vasquez-Hernandez is statutorily ineligible for cancellation of removal.

IV. CONCLUSION

For the foregoing reasons, Vasquez-Hernandez’s petition

for review of the BIA’s order affirming the IJ’s denial of his

motion to reopen is denied.

DENIED.

VASQUEZ-HERNANDEZ v. HOLDER 427