GARCIA-JIMENEZ v. GONZALES
The Ninth Circuit Court of Appeals today released an opinion in GARCIA-JIMENEZ v. GONZALES, No. 03-74625, an administrative appeal. The panel consisted of Harry Pregerson, Barry G. Silverman and Richard C. Tallman, Circuit Judges.
SILVERMAN, Circuit Judge:
The government charged petitioner Jose Garcia-Jimenez with being removable on account of, first, two prior criminal convictions occurring in the mid-1990s, and, second, a recent attempt to smuggle undocumented aliens into the country. Garcia-Jimenez’s criminal convictions occurred before Congress replaced the Immigration and Nationality Act’s waiver of deportation provisions with the more stringent cancellation of removal provisions. Accordingly, he was entitled to apply for, and did receive, a waiver as to his convictions. The Immigration Judge, however, denied relief as to the alien smuggling charge. She applied 8 U.S.C. § 1229b(c)(6), which precludes cancellation of removal in cases where the alien has been granted a waiver of deportation. We hold today that § 1229b(c)(6) bars an alien from obtaining cancellation of removal if he has ever received a waiver of deportation, even if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought. The statute . . .
Judges Silverman and Tallman voted to deny the petition for rehearing en banc and Judge Pregerson voted to grant it. No judge has made an en banc call. The opinion filed January 3, 2007, and appearing at 472 F.3d 679 (9th Cir. 2007), is hereby amended to include a dissent by Judge Pregerson. Pursuant to General Order 5.3.a, an amended opinion showing that Judge Pregerson no longer joins the majority opinion and now dissents is filed contemporaneously with this order. No subsequent petition for rehearing or petition for rehearing en banc may be filed as to the amended opinion. OPINION SILVERMAN, Circuit Judge:
The government charged petitioner Jose Garcia-Jimenez with being removable on account of, first, two prior criminal convictions occurring in the mid-1990s, and, second, a recent attempt to smuggle undocumented aliens into the country. Garcia-Jimenez’s criminal convictions occurred before Congress replaced the Immigration and Nationality Act’s waiver of deportation provisions with the more stringent cancellation of removal provisions. Accordingly, he was entitled to apply for, and did receive, a waiver as to his convictions. The Immigration Judge, however, denied relief as to the alien smuggling charge. She applied 8 U.S.C. § 1229b(c)(6), which precludes cancellation of removal in cases where the alien has been granted a waiver of deportation. We hold today that § 1229b(c)(6) bars an alien from obtaining cancellation of removal if he has ever received a waiver of deportation, even if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought. The statute . . .
PREGERSON, Circuit Judge, dissenting:
Garcia-Jimenez is not a man with a clean record. He has two convictions, and there is evidence that he engaged in alien smuggling. In June 1995, Garcia-Jimenez pled guilty to corporal injury of a spouse. In March 1996, he pled guilty to possession of cocaine. In May 2000, he allegedly attempted to smuggle his sister-in-law and niece into the United States. On June 15, 2000, the former INS initiated removal proceedings against Garcia-Jimenez based on his convictions for domestic violence and drug possession. On February 19, 2002, the INS added a removability charge based on the . . .