### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60038

WILBERTO MIRESLES

- ZUNIGA , Also Known a s Wilberto Mire les,
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 , De MOSS , and HIGGINSON , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
In 2012, the Department of Homeland Security initiated removal pro

ceed ings against Wilberto Miresles

- Zuniga , who conceded remo v a bility because he had been convicted of a fi rearms offense and a crime of domes tic vio lence. Although Miresles

- Zuniga sought cancellation of removal, the immi

gration judge (“IJ”) found that he was not statutorily eligible for th at dis cre tionary relief because of the “stop

- tim e 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 Case: 13-60038 Document: 00512532689 Page: 1 Date Filed: 02/14/2014No. 13

- 60038 the plain reading of that provision supports the IJ’s application of the stop

time rule, we agree and deny the petition for review

.

I. In 2002, Miresles

- Zuniga , a citizen of Mexico, became a lawful perman

ent resid ent of the United States . Six years later he was convicted of the

se cond

- degree felony of aggravated assault against a family membe r under the Texas Penal Code 1 ; i n 2011, he was convicted of misdemeanor pos session of a firearm. Ba sed on th o se two convictions, the IJ ordered his removal under 8 U.S.C. § 1227(a)(2)(C) (f ir earm offenses) and 8 U.S.C. § 1227(a)(2)(E)(i) (crimes of domestic violence). During the removal proceedings, Miresles

Zuniga sought cancellation of removal under 8 U.S.C. § 1229b. The IJ, how

ever, found him not to be statutorily eligible under § 1229b( a) based on the “stop

- time rule

. ” The BIA affirmed without opinion. 2 M iresles

- Zuniga peti

tions this court arguing that the IJ

— and by extension, the BIA

— erred in apply ing the stop

- time rule and that, as a result, he is statutorily eligible for cancellation of r emoval.

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, e xplicitly

1 This was a deferred adjudication conviction, but this court considers deferred adjudi

ca tions 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 deter

mination. See Nakimbugwe v. Gonzale s , 475 F.3d 281, 283 (5th Cir. 2007). 2 Case: 13-60038 Document: 00512532689 Page: 2 Date Filed: 02/14/2014No. 13

- 60038

exem pted 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 , 4 73 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 unam biguous according to its plain language with respect to the question
pre sented , step one is not met. Garcia

- Carias , 6 97 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 omi tted).

III. Under § 1229b, a permanent resident alien is eligible for the discre tion

ary 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 felo ny.” 8 U.S.C. § 1229b(a) (emphasis added). In regard to the second requirement , the calcu

la tion 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, 2 63 (5th Cir. 2012) (“As to its interpretation of immi

gration statutes, we defer to the Board to the extent prescribed by the two

- step analysis set forth in Chevron .”). 3 Case: 13-60038 Document: 00512532689 Page: 3 Date Filed: 02/14/2014No. 13

- 60038 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 remov

a ble from t he 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 resi dency before any qualifying offense referred to in § 1229b(d)(1). Miresles

- Zuniga became a permanent resident in 2002 and lived con tin

u ously in the United States until 2011, when he entered removal proceedings and was thereafter deported. Th at period of a nine

- year, continu ous residen cy , 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), ho wever, his continu ous 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 anal y sis. 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 inad

mis sible 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 adde d). 4

4 Section 1227 concerns deportable aliens. Subsections (a)(2) and (a)(4) concern those deportable for committing criminal offenses or posing securit y or related risks, respectively

. 4 Case: 13-60038 Document: 00512532689 Page: 4 Date Filed: 02/14/2014No. 13

- 60038 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 essen

tial elements of

— (I) a crime involving moral turpitude (other than a p urely 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 con viction is a crime of moral turpitude, he has committed an offence referred to in § 1182(a)(2) for purposes o f § 1229b(d)(1)

. We therefore turn to the secon d step : Does the offense referred to in § 1182(a)(2) render the alien inadmissible under that same section or remov a ble under § 1227(a)(2) or 1227(a)(4)? The IJ ruled that th e 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 er red 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 refe rred 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 remov

a ble 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 d uring the remo val 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, thro ugh counsel, conceded that he was removable under both se ctions at a previous hearing.” 5 Case: 13-60038 Document: 00512532689 Page: 5 Date Filed: 02/14/2014No. 13

- 60038 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: T he 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 s entencing g uidelines but may also b e a crime of moral turpitude in the immigration context. 6 It is n o 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 rea ding 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 i n § 1182. See § 1229b(d)(1). Congress has not otherwise indicated that the cat

e gorization of the offense within the contexts of inadmissibility or removability remain s constant for purposes of the stop

- time rule, and we decline to read such a limi ta tion into its otherwise explicit language

. Therefore, t he 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

- assa ult conviction constituted a crime of violence for purposes of the federal s entencing g uidelines); 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). 6 Case: 13-60038 Document: 00512532689 Page: 6 Date Filed: 02/14/2014No. 13

- 60038 tur pitude but renders the alien removable under a separate section as a crime of domestic violence is not contrary to the st atutory language. In summary, Miresles

- Zuniga ’s conviction of aggravated assault of a fam ily member triggers the stop

- time rule and denies him eligibility for cancel

la tion 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 Miresle s - Zuniga ’s offense is referred to in § 1182(a)(2) and renders him in admissible under that section. See 8 U.S.C. § 122 9b(d)(1)

. We need not decide th at. 7 Case: 13-60038 Document: 00512532689 Page: 7 Date Filed: 02/14/2014