Jose Garcia-Jimenez v. Alberto R. Gonzales, Attorney General

488 F.3d 1082 Jose GARCIA-JIMENEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-74625. United States Court of Appeals, Ninth Circuit. Submitted December 7, 2006. * Filed January 3, 2007. Amended May 30, 2007. Noemi G. Ramirez, Los Angeles, CA, for the petitioner. Peter D. Keisler, Terri J. Scadron, and Leslie McKay, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Azl-xfd-wpw. Before: HARRY PREGERSON, BARRY G. SILVERMAN and RICHARD C. TALLMAN, Circuit Judges. 1 Opinion by Judge SILVERMAN; Dissent by Judge PREGERSON. ORDER 2 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. 3 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…

Opinion by Judge SILVERMAN; Dissent by Judge PREGERSON.

ORDER

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.

AMENDED OPINION

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 *1084 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…

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 re-movability charge based on the smuggling incident. All charges were before the IJ at one hearing. Garcia-Jimenez conceded removability, but sought both suspension of deportation and cancellation of removal. These two forms of relief are largely equivalent. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-597. That statute replaced the suspension of deportation process with the more stringent cancellation of removal process.

Because Garcia-Jimenez pled guilty to the domestic violence and drug charges before Congress enacted IIRIRA,…