PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18
- 2514

YONIS IVAN DEL CID ARGUETA , Petitioner ,

v. WILLIAM P. BARR , Attorney General, Respondent

.

------------------------------- CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, Amicus Supporting Petitioner.

On Petition for Review of a n Order of the Board of Immigration Appeals.

Argued : September 18, 2019 D ecided: August 18, 2020

Before THACKER , RICHARDSON , and RUSHING , Circuit Judges.

Petition denied by published opinion. Judge Rushing wrote the opinion, in which Judge Thacker and Judge Richardson joined.

ARGUED: Donald Louis Schlemmer, Washington, D.C., for Petitioner. Timothy G. Hayes, UNITED STATES DEPARTMENT OF JUSTICE, Washin gton, D.C., for Respondent. ON BRIEF: Kate B. Yi, Washington, D.C., for Petitioner. Joseph H. Hunt,2 Assistant Attorney General, John W. Blakeley, Assistant Director, Melissa Neiman

Kelting, Assistant Directo r , Office of Immigration Litigation, Civil Div ision, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Claudia R. Cubas, Adina Appelbaum, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C.; Susan Baker Manning, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Am icus Curiae.3 RUSHING, Circuit Judge: Yonis Del Cid Argueta is a citizen of El Salvador and a lawful permanent resident of the United States. In 2017, the Department of Homeland Security (DHS) sought to remove Argueta from the United States based on two drug convictions from 2015 and 2016. Argueta conceded removability but sought discretionary cancellation of removal under 8 U.S.C. § 1229b(a). An I mmigration J udge (IJ) found him statutorily in eligible for cancellation of removal because, during Argueta’s first seven years of continuous residence after admission to the United States, he committed an offense listed in 8 U.S.C. § 1182(a)(2) that render ed him inadmissible. See 8 U.S.C. § 1 22 9b(d)(1 )

. T he Board of Immigration Appeals (BIA) agreed with the IJ and dismissed Argueta’s appeal. Argueta then petition ed our Court for review of the BIA’s order, arguing that he could not be “render[ed] .

. . inadmissible” for purposes of 8 U.S.C. § 12 29b(d)(1) because he has already been lawfully admitted to the United States and is not seeking admission. We held the case in abeyance pending the Supreme Court’s decision in Barton v. Barr , 140 S. Ct. 1442 (2020) . The Supreme Court has now issued its d ecision and has held that conviction of an offense listed in Section 1182(a)(2) renders a lawful permanent resident “inadmissible” for purposes of Section 1229b(d)(1) even if he is not seeking admission.
Barton , 140 S. Ct. at 1451

– 1452. Because Argueta c ommitted such an offense during his initial seven years of residence after admission to the United States , and was later convicted of that offense, he is ineligible for cancellation of removal

. We therefore deny his petition.4 I. A noncitizen who has been authorized under federal immigration law to live permanently in the United States is a lawful permanent resident

. See 8 U.S.C. § 1101 (a) (20). Despite this status, a lawful permanent resident who commits certain crimes can be removed from the country. See 8 U.S.C. § 1227. Congress has given the Attorney General (acting through immigration judges) the discretion to cancel the removal of a lawful permanent resident if three conditions are met: (1) he has been “lawfully admitted for permanent residence for not less than 5 years”; (2) he “has resided in the United States continuously for 7 years after having been admitted in any status”; and (3) he “ has not been convicted of any aggravated felon y. ” 8 U.S.C. § 1229b(a). Accumulation of continuous residence is governed by the so

- called “stop

- time rule.” That rule provides that any period of continuous residence shall be deemed to end when the noncitizen “has committed an offense referred to in [ S]ection 1182(a)(2)

. . . that renders [him] inadmissible t o the United States under [ S]ection 1182(a)(2)

. . . or removable from the United States under [ S]ection 1227(a)(2) or 1227(a)(4).” 8 U.S.C. § 1229 b (d)(1)(B). Argueta received lawful permanent resident status o n November 27, 2006

. On February 22, 2013, Argueta was arrested in Virginia for possession of marijuana. He pl eaded guilty and received deferred adjudication, a sentence of probation and a fine, and temporary suspension of his driver’s license

. Argueta’s run

- ins with the law continued, and on October 4, 2017, DHS charg ed him with removability based on two convictions for possession of marijuana in 2015 and 2016. See 8 U.S.C. § 1227(a)(2)(B)(i). Argueta5 conceded his removabili ty and sought discretionary cancellation of removal under Section 1229b(a). The IJ determined that Argueta was statutorily ineligible for cancellation of removal because he had not resided in the United States continuously for seven years after his November 2006 admission. Specifically, the IJ held that Argueta’s February 2013 drug off ense triggered the stop

- time rule because it was an offense listed in Section 1182(a)(2) and it rendered Argueta inadmissible under that section. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Argueta appealed the IJ’s decision to the BIA . He argued, among other t hings, that his 2013 offense could not render him inadmissible because he was already admitted as a lawful permanent resident and was present in the United States and therefore was not seeking admission. The BIA dismissed the appeal . Relying on its own p recedent and decisions from other circuits, the BIA held that a noncitizen need not be seeking admission for a conviction to render him inadmissible for purposes of the stop

- time rule. Argueta petitioned this Court for review

. W e have jurisdiction to re view the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1) and (a)(2)(D). See Jaghoori v. Holder , 772 F.3d 764, 769 (4th Cir. 2014).
II. The stop

- time rule halts a noncitizen’s accumulation of continuous residence in the United States for c ancellation

- of

- removal purposes on the date when the noncitizen “commit[s] an offense referred to in [S ] ection 1182(a)(2)

. . . that renders [him] inadmissible to the U nited States under [S ] ection 1182(a)(2)

. . . or removable from the6 United States under [S ] ection 1227(a)(2) or 1227(a)(4).” 8 U.S.C. § 1229b(d)(1)(B). Argueta does not dispute that, within his initial seven years of residence after his admission, he committed an offense referred to in Section 1182 (a)(2), namely, violation of a Virginia controlled substances law. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Importantly, that offense did not render Argueta removable under Section 1227 , which governs deportability, because that statute excepts “a single off ense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). But Section 1182, regarding admissibility, does not include a similar exception

. S o if that provision can render a previously admitted lawful per manent resident inadmissible, then Argueta’s guilty plea could render him “ inadmissible

. . . under [ S ] ection 1182(a)(2) ” within the meaning of the stop

- time rule

. 8 U.S.C. § 1229b(d)(1). Argueta contends that his offense cannot render him inadmissible u nder Section 1182(a)(2) because, as a lawful permanent resident currently present in the United States, he has already been admitted to this country and is not seeking admission under any exception to the general rule that a lawful permanent resident “shal l not be regarded as seeking an admission in to the United States.” 8 U.S.C. § 1101(a)(13)(C); see , e.g. , 8 U.S.C. § 1101(a)(13)(C)(ii) (for example, a lawful permanent resident who “has been absent from the United States for a continuous period in excess of 180 days” may be regarded as seeking admission)

. As Argueta sees it, whether a noncitizen is capable of being rendered “ inadmissible ” or “removable” (deportable) within the meaning of the stop

time rule depends on his admission statu s

— if he has already been lawfully admitted and is7 not seeking admission , then the noncitizen is subject only to deportabilit y and cannot be rendered inadmissible

. After oral argument in this case, however, th e Supreme Court considered and rejected Argueta’s position. In Barton , the Court held that “[a] lawfully admitted noncitizen who was convicted of a crime [listed in Section 1182(a)(2)(A)] during his initial seven years of residence is ‘inadmissible’ and f or that reason is ineligible for cancellation of removal.” Barton , 140 S. Ct. at 1452. Similar to Argueta here, the petitioner in Barton argued that a noncitizen is not rendered inadmissible until he is actually adjudicated as such and denied admission t o the United States, and a lawfully admitted noncitizen usually cannot be removed from the country on the basis of inadmissibility

— in other words, “how can a lawfully admitted non citizen be found inadmissible when he has already been lawfully admitted?” I d. at 1451. The Court, however, rejected this argument as “disregard[ing] the statutory text, which employs the term ‘inadmissibility’ as a status that can result from, for example, a noncitizen’s (including a lawfully admitted noncitizen’s) commission of certain offenses listed in § 1182(a)(2). ” Id. As the Supreme Court explained, Congress has made that status

— inadmissibility based on conviction of a Section 1182(a)(2) offense

— “ relevant in several statutory contexts that apply to lawfully admitted noncitizen s,” such as adjustment to permanent resident status, termination of temporary resident status, protection from removal because of temporary protected status, and cancellation of removal. Id. at 1452 (citing 8 U.S.C. §§ 1160(a)(1)(C), (a )(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a) , ( l )(2)). In those proceedings, “the noncitizen faces immigration consequences from being convicted of a8 § 1182(a)(2) offense even though the noncitizen is lawfully admitted and is not necessarily

remov able solely because of that offense.” Id. These examples demonstrate that “Congress has employed the concept of ‘inadmissibility’ as a status in a variety of statutes” similar to this one, including for lawfully admitted noncitizens. Id. The Court ther efore concluded that “lawfully admitted noncitizens who are .

. . convicted of § 1182(a)(2) crimes are ‘inadmissible’ and in turn may suffer certain immigration consequences, even though those lawfully admitted noncitizens cannot necessarily be removed sol ely because of those § 1182(a)(2) offenses.” Id.
Barton disposes of Argueta’s petition. A lawfully admitted noncitizen need not be seeking admission to the United States to be “ render [ ed ] .

. . inadmissible

. . . under [S]ection 1182(a)(2)” for purpose s of the stop

- time rule. 8 U.S.C. § 1229b(d)(1 )

. Although Argueta is a lawful permanent resident who is not seeking admission, his plea of guilty to a Section 1182(a)(2) offense rendered him inadmissible. Because he committed that offense within seven y ears of his admission, he is ineligible for cancellation of removal. The petition for review is
DENIED

.