IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60038

WILBERTO MIRESLES-ZUNIGA, Also Known as Wilberto Mireles,

 Petitioner,

versus

ERIC H. HOLDER, JR., U.S. Attorney General, 

 Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In 2012, the Department of Homeland Security initiated removal proceedings against Wilberto Miresles-Zuniga, who conceded removability 

because he had been convicted of a firearms offense and a crime of domestic 

violence. Although Miresles-Zuniga sought cancellation of removal, the immigration judge (“IJ”) found that he was not statutorily eligible for that discretionary relief because of the “stop-time rule” in 8 U.S.C. § 1229b(d)(1). Because 

United States Court of Appeals

Fifth Circuit

FILED

February 14, 2014

Lyle W. Cayce

Clerk

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No. 13-60038

the plain reading of that provision supports the IJ’s application of the stoptime rule, we agree and deny the petition for review.

I.

In 2002, Miresles-Zuniga, a citizen of Mexico, became a lawful permanent resident of the United States. Six years later he was convicted of the 

second-degree felony of aggravated assault against a family member under the 

Texas Penal Code1; in 2011, he was convicted of misdemeanor possession of a 

firearm. Based on those two convictions, the IJ ordered his removal under 

8 U.S.C. § 1227(a)(2)(C) (firearm offenses) and 8 U.S.C. § 1227(a)(2)(E)(i) 

(crimes of domestic violence). During the removal proceedings, MireslesZuniga sought cancellation of removal under 8 U.S.C. § 1229b. The IJ, however, found him not to be statutorily eligible under § 1229b(a) based on the 

“stop-time rule.” The BIA affirmed without opinion.2 Miresles-Zuniga petitions this court arguing that the IJ—and by extension, the BIA—erred in 

applying the stop-time rule and that, as a result, he is statutorily eligible for 

cancellation of removal. 

II.

Congress stripped this court of jurisdiction to review final orders of 

removal, including any judgment regarding the granting of relief under 

§ 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). The statute, however, explicitly 

1 This was a deferred adjudication conviction, but this court considers deferred adjudications under Texas law as a conviction for the purposes of immigration laws. See Moosa v. 

I.N.S., 171 F.3d 994, 1005–06 (5th Cir. 1999).

2 Although this court has the authority to review only the decision of the BIA, when 

the BIA affirms without opinion, we may review the IJ’s decision as the final agency determination. See Nakimbugwe v. Gonzales, 475 F.3d 281, 283 (5th Cir. 2007).

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exempted the review of constitutional claims or questions of law raised in a 

petition for review to an appropriate court of appeals. See 8 U.S.C. § 1252(a)-

(2)(D). Therefore, although this court does not have jurisdiction to review the 

IJ’s determination of removability, it can review whether, as a matter of law,

Miresles-Zuniga’s offense triggers the stop-time provision in § 1229b(d)(1). We 

review such questions de novo. See Heaven v. Gonzales, 473 F.3d 167, 171 (5th 

Cir. 2006).

We apply Chevron’s two-step analysis to determine whether the BIA’s 

interpretation warrants Chevron deference.3 Because, however, § 1229b(d)(1) 

is unambiguous according to its plain language with respect to the question 

presented, step one is not met. Garcia-Carias, 697 F.3d at 263. Therefore, 

because we give no deference to the BIA’s interpretation of the statute, “th[is] 

court, as well as the agency, must give effect to the unambiguously expressed 

intent of Congress.” Id. (citation and internal quotation marks omitted).

III.

Under § 1229b, a permanent resident alien is eligible for the discretionary relief of cancellation of removal only if he “(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.” 8 U.S.C. 

§ 1229b(a) (emphasis added). In regard to the second requirement, the calculation of continuous residency is qualified by the stop-time rule:

For purposes of this section, any period of continuous residence or 

continuous physical presence in the United States shall be deemed 

3 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984);

Garcia-Carias v. Holder, 697 F.3d 257, 263 (5th Cir. 2012) (“As to its interpretation of immigration statutes, we defer to the Board to the extent prescribed by the two-step analysis set 

forth in Chevron.”).

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to end . . . when the alien has committed an offense referred to in 

section 1182(a)(2) of this title that renders the alien inadmissible 

to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) 

of this title . . . .

8 U.S.C. § 1229b(d)(1). Thus, according to the stop-time rule, the calculation 

of continuous residence is limited to only the period of residency before any 

qualifying offense referred to in § 1229b(d)(1). 

Miresles-Zuniga became a permanent resident in 2002 and lived continuously in the United States until 2011, when he entered removal proceedings 

and was thereafter deported. That period of a nine-year, continuous residency, 

being longer than seven years, alone would meet the second requirement under 

§ 1229b(a). If Miresles-Zuniga’s 2008 conviction of aggravated assault against 

a family member—a second degree felony—qualifies as a stop-time offense 

under § 1229b(d)(1), however, his continuous residency for purposes of 

§ 1229b(a) would stop at six years, one year short of statutory eligibility.

Regarding whether an offense triggers the stop-time rule, a plain reading 

of the statute requires what can be conceptualized as a two-step analysis. 

First, a court—or the appropriate agency—must look to whether the offense 

committed is “an offense referred to in section 1182(a)(2),” a section regarding 

inadmissible aliens. § 1229b(d)(1)(B). If it is such an offense, the court or

agency must then look to whether that same offense “renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable 

from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Id. 

(emphasis added).4 

4 Section 1227 concerns deportable aliens. Subsections (a)(2) and (a)(4) concern those

deportable for committing criminal offenses or posing security or related risks, respectively.

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As for the first step, Miresles-Zuniga concedes that his conviction of 

aggravated assault of a family member is referred to in § 1182(a)(2) in that it 

constitutes a crime involving moral turpitude under that section. Section 

1182(a)(2) states, in relevant part: “[A]ny alien convicted of, or who admits 

having committed, or who admits committing acts which constitute the essential elements of—(I) a crime involving moral turpitude (other than a purely 

political offense) . . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i) (emphasis 

added). Because Miresles-Zuniga, through his lawyer, conceded before both

the IJ and this court that his conviction is a crime of moral turpitude, he has 

committed an offence referred to in § 1182(a)(2) for purposes of § 1229b(d)(1). 

We therefore turn to the second step: Does the offense referred to in 

§ 1182(a)(2) render the alien inadmissible under that same section or removable under § 1227(a)(2) or 1227(a)(4)? The IJ ruled that the second step was 

met—and the time-stop rule triggered—because the crime of aggravated 

assault of a family member rendered the alien removable under § 1227(a)(2) 

as a crime of domestic violence. § 1227(a)(2)(E)(i).5 

Miresles-Zuniga claims that the IJ erred because the unambiguous, 

plain reading of § 1229b(d)(1) requires that the offense referred to in 

§ 1182(a)(2) causes removability under § 1227(a)(2) as it is referred to under 

§ 1182(a)(2). In other words, because Miresles-Zuniga’s offense can be referred 

to as only a crime involving moral turpitude under § 1182(a)(2), he contends 

that the time-stop rule requires that the offense must also render him removable on that same basis—as a crime of moral turpitude, and not as a crime of 

5 In fact, it was partially under this section that the IJ removed Miresles-Zuniga, and 

Miresles-Zuniga conceded removability under this section during the removal proceedings: 

“The Court concludes that the Respondent’s conviction for aggravated assault of a family 

member does in actuality render the Respondent removable under INA Section 237(a)(2)(C) 

and INA Section 237(a)(2)(E)(i). Indeed, the Respondent, through counsel, conceded that he 

was removable under both sections at a previous hearing.”

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domestic violence, under § 1227(a)(2). As a result, the argument continues, the 

stop-time rule is not triggered because a single commission of a crime of moral 

turpitude under § 1227(a)(2) can render an alien deportable only if committed 

within five years after the date of admission. See § 1227(a)(2)(A)(i)(I). 

At its core, this issue becomes one of nomenclature: The same state 

offense can—and often will—be categorized differently for purposes of federal 

law depending on the context. For example, the same state offense may be 

characterized as a crime of violence under the sentencing guidelines but may 

also be a crime of moral turpitude in the immigration context.6 

It is no different here. As Miresles-Zuniga concedes, his conviction of

second-degree felony of aggravated assault against a family member under 

Texas law may be categorized in the immigration context both as a crime of 

moral turpitude and as a crime of domestic violence.

Contrary to Miresles-Zuniga’s assertion, the plain reading of the statute 

does not require that an alien be removable as the offense is categorized under 

§ 1182. The most natural reading of the phrase “offense referred to” focuses on 

the actual offense committed and not the characterization of that offense in 

§ 1182. See § 1229b(d)(1). Congress has not otherwise indicated that the categorization of the offense within the contexts of inadmissibility or removability 

remains constant for purposes of the stop-time rule, and we decline to read 

such a limitation into its otherwise explicit language. Therefore, the fact that 

the same Texas offense is referred to in one section as a crime involving moral 

6 See United States v. Cruz-Campos, No. 13-40334, 2014 WL 116437, at *1 (5th Cir.

Jan. 14, 2014) (per curiam) (unpublished) (holding that a Pennsylvania aggravated-assault 

conviction constituted a crime of violence for purposes of the federal sentencing guidelines); 

Pichardo v. I.N.S., 104 F.3d 756, 759–60 (5th Cir. 1997) (holding that a Pennsylvania 

aggravated-assault conviction constituted a crime of moral turpitude for purposes of 

removal).

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turpitude but renders the alien removable under a separate section as a crime 

of domestic violence is not contrary to the statutory language. 

In summary, Miresles-Zuniga’s conviction of aggravated assault of a 

family member triggers the stop-time rule and denies him eligibility for cancellation of removal.7 The petition for review is therefore DENIED.

7 The petition might also be denied on the alternate ground that the stop-time rule is 

triggered because Miresles-Zuniga’s offense is referred to in § 1182(a)(2) and renders him 

inadmissible under that section. See 8 U.S.C. § 1229b(d)(1). We need not decide that.

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