Cite as 24 I&N Dec. 218 (BIA 2007) Interim Decision #3570 

In re Sandra Patricia GONZALEZ-SILVA, Respondent 

File A96 149 596 - San Francisco 

Decided June 27, 2007 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the 

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E) (2000), is not “convicted of an 

offense under” that section and therefore is not barred from establishing eligibility for 

cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) 

(2000). 

FOR RESPONDENT: Samuel U. Ogbu, Esquire, Emeryville, California 

BEFORE: Board Panel: HOLMES, MILLER and GRANT, Board Members. 

GRANT, Board Member: 

In a decision dated March 13, 2006, which incorporated an earlier decision 

of February 23, 2006, an Immigration Judge pretermitted the respondent’s 

application for cancellation of removal for nonpermanent residents under 

section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) 

(2000). The respondent has appealed from that decision. The appeal will be 

sustained, and the record will be remanded to the Immigration Judge for 

further proceedings. 

The respondent is a 36-year-old native and citizen of Mexico who entered 

the United States without inspection or parole on or about February 25, 1992. 

She was served with a Notice to Appear (Form I-862) on December 23, 2002, 

charging that she is subject to removal under section 212(a)(6)(A)(i) of the 

Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2000). Removability is not in dispute. 

Section 240A(b)(1) of the Act, which sets forth the criteria to establish 

eligibility for cancellation of removal for certain nonpermanent residents, 

provides, in pertinent part, as follows:

 The Attorney General may cancel removal of, and adjust to the status of an alien 

lawfully admitted for permanent residence, an alien who is inadmissible or deportable 

from the United States if the alien–

 (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 

237(a)(3) . . . .

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Cite as 24 I&N Dec. 218 (BIA 2007) Interim Decision #3570 

The Immigration Judge pretermitted the respondent’s cancellation 

application on the basis of her November 30, 1994, conviction for willful 

cruelty or unjustifiable punishment of a child in violation of section 237a(b)

of the California Penal Code, finding that she had been convicted of an 

offense under section 237(a)(2)(E)(i) of the Act, 8 U.S.C. § 1227(a)(2)(E)(i)

(2000). The Immigration Judge rejected the respondent’s argument that her 

1994 conviction does not bar her from applying for cancellation of 

removal because section 237(a)(2)(E) is only effective as to convictions 

occurring after September 30, 1996, the enactment date of the law that added 

that section to the Act. See Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 350, 

110 Stat. 3009-546, 3009-639 (“IIRIRA”). Citing the Ninth Circuit’s decision 

in Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004), the 

Immigration Judge found that the respondent was confusing the issue of 

removability with the issue of eligibility for the requested relief. She 

concluded that eligibility for cancellation of removal, a form of relief enacted 

in 1996 in the IIRIRA, is explicit in the statute, and that the section 

237(a)(2)(E) bar applies to all convictions, regardless of when they occurred. 

In Gonzalez-Gonzalez v. Ashcroft, supra, the Ninth Circuit held that the 

most logical reading of section 240A(b)(1)(C) is that the phrase “convicted of 

an offense under” section 237(a)(2) (and the two other sections included in the 

statute) means “convicted of an offense described under” those sections. Id. 

at 652. Therefore, an alien who was not subject to removal under section 

237(a)(2) of the Act because he was inadmissible, rather than deportable, was 

nonetheless found to be ineligible for cancellation of removal as a result of his 

conviction for an offense described under section 237(a)(2) of the Act. The 

court found that Congress “did not intend to carve out an exception for 

inadmissible aliens” when it made aliens who committed crimes of violence 

ineligible for cancellation of removal. Id. at 653. 

The respondent’s claim is not that sections 237(a)(2)(E) and 

240A(b)(1)(C) of the Act do not preclude her from establishing eligibility for 

cancellation of removal because she is an inadmissible, rather than a 

deportable, alien. She asserts instead that she is not barred from establishing 

eligibility for that relief because her conviction preceded the effective date of 

section 237(a)(2)(E) of the Act. In Matter of Garcia-Hernandez, 23 I&N Dec. 

590 (BIA 2003), we found that the language of section 240A(b)(1)(C) of the 

Act requiring an alien to show that he “has not been convicted of an offense 

under section 212(a)(2) of the Act” incorporated the entirety of the offense 

described under section 212(a)(2), including the exception for petty offenses 

set forth therein. As we stated in that case, “Put in other terms, the 

‘description’ of the category of offenses encompassing crimes involving moral 

turpitude also includes the exception.” Id. at 593. 

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Cite as 24 I&N Dec. 218 (BIA 2007) Interim Decision #3570 

Similarly, we conclude that an alien whose conviction precedes the 

effective date for section 237(a)(2)(E) of the Act has not been “convicted 

under” section 237(a)(2) of the Act. While this is a close question, we find 

that an offense can be one “described” in section 237(a)(2)(E) only if the 

conviction for that offense occurred after September 30, 1996. See IIRIRA 

§ 350(b), 110 Stat. at 3009-640 (stating that the amendment applies to 

convictions occurring after the date of enactment). This conclusion is not 

inconsistent with the Ninth Circuit’s reasoning in Gonzalez-Gonzalez v. 

Ashcroft, supra, which merely held that Congress had not carved out an 

exception for inadmissible aliens when it made aliens who committed crimes 

of violence ineligible for cancellation of removal. Because the respondent’s 

November 1994 conviction preceded the effective date of section 237(a)(2)(E)

of the Act, she has not been “convicted of an offense under” that section 

within the meaning of section 240A(b)(1)(C) of the Act and therefore is not 

ineligible for cancellation of removal. 

Accordingly, the respondent’s appeal will be sustained, and the record will 

be remanded for further consideration of her application for cancellation of 

removal. 

ORDER: The appeal is sustained. 

FURTHER ORDER: The record is remanded to the Immigration Judge 

for further proceedings consistent with the foregoing opinion and for the entry 

of a new decision. 

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