Luis A. REYES, aka Luis Alberto Molina Reyes, Petitioner, v. Eric H. HOLDER, JR., United States Attorney General, Respondent, 714 F.3d 731

PER CURIAM: This appeal requires us to interpret a rule, promulgated pursuant to the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”), Pub.L. No. 105-100, 111 Stat. 2193, that permits the Attorney General, in his discretion, to cancel an alien’s removal from the United States in certain circumstances, so long as the alien is not “inadmissible under

section 212(a)(2) or (3) or deportable under

section 237(a)(2), (3) or (4)” of the Immigration and Nationality Act (“INA”). 8 C.F.R. § 1240.66(b)(1) (emphasis added). According to the plain text of this regulation, the terms “inadmissible” and “deport-able” are defined by the provisions to which they refer in the INA. Consequently, an alien seeking lawful entry to the United States is “inadmissible” if he is ineligible for admission to the United States for any of a number of reasons set out in § 212.

Similarly, but separately, an alien is “deportable” if he was legally admitted to the United States but may now be removed for any of a number of reasons set out in § 237. See Judulang v. Holder, - U.S. -, 132 S.Ct. 476, 479, 181 L.Ed.2d 449 (2011) (comparing inadmissibility with deportability). In this case, the Board of Immigration Appeals (“BIA”) determined that petitioner Luis A.

Reyes was ineligible for NA-CARA’s so-called “special rule cancellation of removal” under § 1240.66(b)(1) because Reyes—an unadmitted alien—had a conviction for menacing in the second degree that would make an admitted alien “de-portable” under § 237.

In particular, the BIA explained that, even if Reyes’s prior conviction fell within the “petty offense exception” and therefore would not block his admissibility under § 212, that conviction still made him ineligible for special rule cancellation of removal because it is one of the offenses listed under § 237, which does not contain the “petty offense exception.” The BIA’s

interpretation of the rule, however, fails to properly apply the legal terms “inadmissible” and “de-portable.” An alien is ineligible for special rule cancellation of removal if he is “de-portable” under § 237, but Reyes was never admitted to the United States and therefore by definition is not “deportable” under § 237. In these circumstances, we conclude that (1) the BIA’s

interpretation of 8 C.F.R. § 1240.66(b)(1) is inconsistent with the regulation, and (2) as an unadmitted alien, Reyes cannot be ineligible for special rule cancellation of removal on the basis of a conviction that would make an admitted alien “deportable” under § 237 of the INA.

Because our holding is limited to the conclusion that conviction of a crime specified under § 237 cannot render Reyes, as an unadmitted alien, ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes. BACKGROUND A. Factual History Reyes was born in El Salvador and entered the United States illegally in June of 1986, when he was 19 years old.

As relevant here, Reyes pleaded guilty on January 18, 1995, to menacing in the second degree, in violation of New York Penal Law § 120.14. As a Class A misdemean- or, menacing in the second degree carries a maximum prison sentence of one year. See N.Y. Penal Law § 70.15(1). It appears from the Administrative Record that Reyes received no jail time and was sentenced only to three years of probation.

On March 30, 2005, Reyes was served with a Notice to Appear, charging him with being present in the United States without having been admitted, and indicating that he was “inadmissible” and subject to removal pursuant to INA § 212(a)(6)(A)®. Reyes sought, inter alia, “special rule cancellation of removal” pursuant to NACARA, which permits the Attorney General, in his discretion, to cancel removal for qualified aliens from certain countries, including El Salvador. NA-CARA § 203,11 Stat. 2160, 2198. B.

Statutory Provisions Congress enacted NACARA in 1997 “in part to prevent the mass deportation of aliens who had arrived from some former Soviet bloc and Central American nations.” Tanov v. INS, 443 F.3d 195, 199 (2d Cir.2006); see also Romero v. INS, 399 F.3d 109, 111-12 (2d Cir.2005). Congress sought to achieve this goal by amending the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), Pub.L. No. 104-208, Div.

C., Title III-A, 110 Stat. 3009-546 (1996), “to permit qualified aliens from certain countries placed in deportation proceedings ... to apply for ‘special rule’ protection from deportation.” Tanov, 443 F.3d at 199 (internal alteration and quotation marks omitted).

In order to obtain this special rule protection, or “special rule cancellation of removal,” the applicant must “establish by a preponderance of the evidence that he ... is eligible for suspension of deportation or special rule cancellation of removal and that discretion. should, be exercised to grant relief.” 8 C.F.R. § 1240.64(a); see also Gonzalez-Ruano v. Holder, 662 F.3d 59, 61 (1st Cir.2011). To be eligible, the applicant must show that (1) he “is not inadmissible under

section 212(a)(2) or (3) or deportable under

section 237(a)(2), (3) or (4)” of the INA; (2) he has been physically present in the United States for a continuous period of seven years immediately preceding the date of his application for relief is filed; (3) he “has been a person of good moral character during the required period of continuous physical presence”; and (4) he or a qualifying relative will suffer extreme hardship as a result of his removal. 8 C.F.R. § 1240.66(b). This appeal concerns the first of these requirements—that an applicant for special rule cancellation of removal be not “inadmissible under

section 212(a)(2) or (3) or deportable under

section 237(a)(2), (3) or (4)” of the INA. Id. § 1240.66(b)(1). ' Generally, § 212 of the INA sets out the reasons for which an alien seeking a visa or admission to the United States may be considered “inadmissible,” see INA § 212(a) (listing “[cjlasses of aliens ineligible for visas or admission”), whereas § 237 lists the reasons for which an alien who has already been admitted to the United States may be considered “deportable,” see INA § 237(a) .(alien is “deportable” only if “in and admitted to the United States” (emphasis added)).

In other words, § 212 applies to aliens who, like Reyes, have not been legally admitted to -the United States, and § 237 applies to aliens who have been legally admitted. As relevant'here, § 212(a)(2) of the INA renders an alien inadmissible to the United States if he has committed certain crimes involving moral turpitude.

Section 237(a)(2) of the INA likewise renders an already-admitted alien deportable if he has committed certain crimes involving moral turpitude. Accordingly, in order to be eligible for special rule cancellation of removal, an alien cannot be (1) inadmissible by virtue of having committed certain crimes specified in the INA, or (2) deport-able by virtue of having committed certain crimes specified in the INA.

Importantly, however, the particular crimes specified in the INA that make an admitted alien “deportable” are not necessarily the same crimes that make an unad-mitted alien “inadmissible.” As the BIA correctly pointed out, one key difference between the crimes that render an unad-mitted alien inadmissible under § 212(a)(2) and those that render an admitted alien deportable under § 237(a)(2) is the so-called “petty offense exception,” which is applicable to § 212(a)(2) but not to § 237(a)(2).

Under the petty offense exception, a conviction for an offense involving moral turpitude does not render an unadmitted alien inadmissible under § 212(a)(2) when (1) the maximum penalty possible was a year or less, and (2) the alien was actually sentenced to less than six months in prison. INA § 212(a)(2)(A)(ii); see note 8, ante. A conviction involving a petty offense, however, may still render an admitted alien deporta-ble under § 237(a)(2).

In Reyes’s case, we assume that his conviction for menacing in the second degree qualifies for the petty offense exception, see note 5, ante, and therefore Reyes—who is not an admitted alien—is not inadmissible under § 212(a)(2). But, remarkably, if Reyes were an admitted alien, his conviction would render him de-portable under § 237(a)(2). C. Procedural History In an oral decision, the Immigration Judge (“IJ”) found Reyes ineligible for special rule cancellation of removal based on his conviction for menacing in the second degree. The IJ, however, failed to address the petty offense exception.

On appeal, the BIA acknowledged in a written decision that Reyes’s menacing conviction might qualify for the petty offense exception. Nonetheless, the BIA held that Reyes is still ineligible for special rule relief because his conviction is listed among the crimes that would render an admitted alien “deportable” under § 237(a)(2).

In other words, the BIA construed the special rule in 8 C.F.R. § 1240.66(b), see note 7, ante, as making aliens ineligible for cancellation of removal if they have committed any of the crimes listed in § 212(a)(2) and (3) or § 237(a)(2), (3) and (4) of the INA, regardless of whether the alien at issue is actually “inadmissible” or “deportable” under those provisions, respectively.

Accordingly, the question presented in this appeal is whether conviction of a crime specified under § 237(a)(2), (3) or (4) of the INA can render an unadmitted alien ineligible for special rule cancellation of removal, even though those provisions apply only to admitted aliens. DISCUSSION The Supreme Court has recently reaffirmed that “[w]hen an agency interprets its own regulation, the Court, as a general rule, defers to it unless that

interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envt’l Def. Ctr., — U.S. -, 133 S.Ct. 1326, 1337, 185 L.Ed.2d 447 (2013) (quotation marks omitted). In this case, the BIA’s

interpretation is “plainly erroneous or inconsistent with the regulation.” Most importantly, the BIA’s reading of the rule fails to properly apply its terms— namely, that the alien not be “inadmissible under

section 212(a)(2) or (3) or deport-able under

section 237(a)(2), (3) or (4)” of the INA. 8 C.F.R. § 1240.66(b)(1) (emphasis added). Indeed, the plain language of this provision—which straightforwardly adopts Congress’s use of the legal terms “inadmissible” and “deportable”—demon-strates that an applicant’s admission status (ie., admitted or not admitted) is critical when determining an alien’s eligibility for special rule cancellation of removal.

According to the plain text of § 1240.66(b)(1), the terms “inadmissible” and “deportable” are defined by the provisions to which they refer in the INA, and an alien is deporta-ble only if “in and admitted to the United States.” INA § 237(a) (emphasis added). Because Reyes was not “admitted to the United States,” he is not “deportable” under § 237(a). In reaching its conclusion, the BIA relied on its holding in Matter of Cortez, 25 I. & N. Dec. 301 (BIA 2010), in which it analyzed the statutory provision for non-NACARA cancellation of removal under § 240A of the INA.

Under § 240A, an alien’s removal may be cancelled if he “has not been convicted of an offense under

section 212(a)(2), 237(a)(2), or 237(a)(3)....” INA § 240A(b)(l)(C) (emphasis added). In Cortez, the BIA agreed with the Ninth Circuit that the broad language “an offense under” required disqualification of an inadmissible alien whose conduct was also “described under” the criminal elements of the deportation provision, INA § 237(a)(2), without regard as to whether the alien would actually be “de-portable.” See Cortez, 25 I. & N. Dec. at 304 (quoting Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir.2004)). In so finding, the BIA in Cortez contrasted the “an offense under” clause in § 240A(b)(l)(

C) with another

section of the INA, which provides that an alien’s “continuous period of physical presence” shall be considered to end when the alien has committed an offense referred to in

section 212(a)(2) that “ ‘render[s ] [the alien ] inadmissible to the United States under

section 212(a)(2) or removable from the United States under

section 237(a)(2)....’” Cortez, 25 I. & N. Dec. at 308 (emphasis added) (quoting § 240A(d)(l)). The BIA stated that it was the absence of those phrases—“renders the alien inadmissible” and “or removable”—in § 240A(b)(l)(

C) which indicated Congress’s intent to disqualify an unadmitted alien from § 240A relief if he has committed any offense listed under §§ 212(a)(2), 237(a)(2), or 237(a)(3). Id. The BIA’s effort in Cortez to distinguish the “continuous period of physical presence” rule therefore not only does not support the BIA’s decision below, but rather confirms our conclusion that an applicant’s status is relevant to an alien’s eligibility for special rule cancellation of removal.

See also Matter of Leon, [ AXXX XXX XXX ], 2008 WL 5477737 (BIA Dec. 5, 2008) (unpublished decision) (alien not “de-portable” within meaning of 8 C.F.R. § 1240.66(b)(1) “because he was never actually ‘admitted to the United States.’ ”) (quoting INA § 237(a)).

Although it may seem anomalous that a legally admitted alien can be rendered ineligible for special rule cancellation of removal while an unadmitted alien who committed the same crime can remain eligible, we have previously noted that Congress’s harsher treatment of legal permanent residents (“LPRs”) may be justified on the basis that “an LPR’s violation of American laws represents a greater betrayal or poses a heightened concern of recidivism, and therefore calls for harsher measures under the immigration laws.” Jankowski-Burczyk v.

INS, 291 F.3d 172, 179 (2d Cir.2002); see also, e.g., Gonzalez-Gonzalez, 390 F.3d at 652 (“LPRs enjoy substantial rights and privileges not shared by other aliens, and therefore it is arguably proper to hold them to a higher standard and level of responsibility than non LPRs.” (alterations and quotation marks omitted)).

In sum, 8 C.F.R. § 1240.66(b)(1) means what it says: In order to be eligible for special rule cancellation of removal under that provision, an alien must not be inadmissible by virtue of having committed certain crimes specified in § 212 of the INA or deportable by virtue of having committed certain crimes specified in § 237 of the INA. Inasmuch as Reyes is not deportable, his conviction of a crime listed in § 237 cannot render him ineligible for special rule cancellation of removal. The BIA therefore erred in determining that Reyes is ineligible on the basis that he committed a crime specified in § 237.

Because our holding is limited to the conclusion that conviction of a crime specified under § 237 cannot make an unadmitted alien ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes.

CONCLUSION We therefore conclude: (1)The terms “inadmissible” and “de-portable,” as used in 8 C.F.R. § 1240.66(b)(1), are defined by the provisions to which they refer in the Immigration and Nationality Act, and therefore an alien who was not “admitted to the United States,” INA § 237(a), cannot be found ineligible for special rule cancellation of removal on the basis that he is “de-portable.”

(2) The particular crimes specified in the INA that make an admitted alien “deportable” are not necessarily the same crimes that make an unadmit-ted alien “inadmissible.” Accordingly, if an unadmitted alien seeks special rule cancellation of removal, the BIA should consider whether the alien is “inadmissible under

section 212(a)(2) or (3)” of the INA—not whether he is “deportable under

section 237(a)(2), (3) or (4)” of the INA. 8 C.F.R. § 1240.66(b)(1). As relevant here, for example, if an unad-mitted alien has a single conviction involving a crime of moral turpitude, the BIA should evaluate whether that conviction qualifies for the petty offense exception set out in § 212 of the INA, regardless of whether that conviction would render an admitted alien deportable under § 237.

(3) Accordingly, the BIA erroneously determined that Reyes is ineligible for special rule cancellation of removal on the basis that he was convicted of a crime that would make an admitted alien “deportable” under the relevant portions of the INA.

(4) Because our holding is limited to the conclusion that conviction of a crime specified under § 237(a)(2), (3) or (4) cannot render an unadmitted alien ineligible for special rule cancellation of removal, we remand so that the BIA may decide in the first instance any other matters that may be appropriate in determining whether to grant special rule cancellation of removal to Reyes. For these reasons, the petition for review is GRANTED in part (with respect to Reyes’s claim that the BIA erred in determining that the petty offense exception could not render him eligible for special rule cancellation of removal), and the case is REMANDED for proceedings consistent with this opinion. .

Section 212 of the INA is codified at 8 U.S.C. § 1182. For the sake of consistency, and in conformity with the relevant regulations, we refer throughout this opinion to the relevant

section of the INA, rather than of the United States Code. .

Section 237 of the INA is codified at 8 U.S.C. § 1227. See note 1, ante. . Under NACÁRA, we generally lack jurisdiction to review the denial of cancellation of removal or of waiver of inadmissibility on discretionary grounds. See 8 U.S.C. § 1252(a)(2)(B)(i). However, we retain jurisdiction to review colorable constitutional claims or, as applies here, questions of law. See id. § 1252(a)(2)(D); Argueta v. Holder, 617 F.3d 109, 112 (2d Cir.2010). .

In relevant part, the New York Penal Law provides that a person is guilty of menacing in the second degree when "[h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” N.Y. Penal Law § 120.14(1). .In fact, the only support for the claim that Reyes was sentenced to probation for his menacing conviction comes from the submissions of Reyes's counsel.

See Joint App’x 36, 340, 593, 609, 629, 631. The BIA appears to have credited this assertion, or at least assumed it to be true for the purposes of its decision. See id. at 3. We therefore also assume it to be true for the purposes of this appeal. . If the applicant is inadmissible under § 212(

a) or deportable under § 237(

a) of the INA by virtue of having committed a crime involving moral turpitude, he may still be eligible for special rule cancellation of removal if he cap satisfy more stringent standards, which require, inter alia, ten years of continuous physical presence in the United States immediately following the commission of the disqualifying act, and a showing of "exceptional and extremely unusual hardship.” 8 C.F.R. § 1240.66(c); see also Gonzalez-Ruano, 662 F.3d at 61. . In full, 8 C.F.R. § 1240.66(

b) provides: General rule. To establish eligibility for special rule cancellation of removal under

section 309(f)(1)(

A) of IIRIRA, as amended by

section 203 of NACARA, the alien must establish that:

(1) The alien is not inadmissible under

section 212(a)(2) or (3) or deportable under

section 237(a)(2), (3) or (4) of the Act (relating to criminal activity, document fraud, failure to register, and security threats);

(2) The alien has been physically present in the United States for a continuous period of 7 years immediately preceding the date the application was filed;

(3) The alien has been a person of good moral character during the required period of continuous physical presence; and

(4) The alien’s removal from the United States would result in extreme hardship to the alien, or to the alien's spouse, parent or child who is a United States citizen or an alien lawfully admitted for permanent residence. .Specifically, § 212(a)(2)(

A) of the INA provides: (

i) In general Except as provided in clause (ii), any 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) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in

section 802 of Title 21), is inadmissible. (ii) Exception Clause (i)(

I) shall not apply to an alien who committed only one crime if—■ (

I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). 8 U.S.C. § 1182(a)(2)(A). .Specifically, § 237(a)(2)(A)(

i) of the INA provides: Any alien who— (

I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under

section 1255(

j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. 8 U.S.C. § 1227(a)(2)(A)(i). . For the purposes of this appeal, we assume, without deciding, that the BIA properly determined that menacing in the second degree constitutes a crime involving moral turpitude. .

Reyes asserts that the petty offense exception applies because (1) his menacing-in-the-second-degree conviction was the only crime involving moral turpitude he committed; (2) menacing in the second degree carries a maximum sentence of one-year's imprisonment; and (3) he was sentenced only to three years of probation. See 8 U.S.C. § 1182(a)(2)(A)(ii); N.Y. Penal Law § 70.15(1) (indicating that Class A misdemeanors, such as menacing in the second degree, carry a maximum sentence of one-year's imprisonment). As noted above, it is not entirely clear from the record that Reyes only received a sentence of probation.

See note 5, ante. . Again, because Reyes is not admitted to the United States, he is not deportable under § 237. . We are mindful that "[a]n agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Gonzales v. Oregon, 546 U.S. 243, 257, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006); see NACARA § 203(l)(b)("[T]he Attorney General may ... cancel removal ... if the alien ... is not inadmissible or deportable under paragraph (2) or (3) of

section 212(

a) or paragraph (2), (3), or (4) of

section 237(

a) of the Immigration and Nationality Act....”). Nonetheless, there is no reason to determine the appropriate level of deference to the BIA here, as we conclude that the agency’s

interpretation cannot be sustained even under the more deferential standard. .In 1996, Congress amended § 237(

a) of the INA by substituting the phrase "in and admitted to the United States” for the phrase "in the United States.” See Pub.L. No. 104-208, Div. C., Title III-A, § 301(d)(1), 110 Stat. at 3009-579. . Of course, this is not to say that Reyes was not removable from the United States; unad-mitted aliens are generally removable from the United States pursuant to § 240 of the INA.

Section 240 of the INA is codified at 8 U.S.C. § 1229a. See note 1, .ante. .

Section 240A of the INA is codified at 8 U.S.C. § 1229b. See note 1, ante. . We note that Reyes also argues that the BIA and IJ erred in (1) determining that his conviction for menacing in the second degree involved moral turpitude; (2) concluding that he failed to establish exceptional and extremely unusual hardship, as required for an alternative form of cancellation of removal under NACARA, see note 6, ante; and (3) rejecting his claim for a stand-alone waiver of removal under § 212(

h) of the INA. Because we hold that the BIA erred in determining that Reyes is ineligible for special rule cancellation of removal under 8 C.F.R. § 1240.66(b), we decline to consider whether he satisfies the more stringent standards for the alternate form of NACARA relief under 8 C.F.R. § 1240.66(c)(1). Finally, we deny his claim for a stand-alone waiver of removal as without merit.