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Matter of Fidencio Pina-Galindo

In Matter of Pina-Galindo, the Board found that the respondent was ineligible for cancellation of removal for a non-permanent resident under INA 240A(b)(1) because he had been convicted of two or more offenses with an aggregate sentence to confinement of 5 years or more.

The respondent was put in removal proceedings for being present without admission or parole.  He applied for cancellation of removal based on being physically present in the U.S. for 10 or more years and the hardship that removal would cause to a qualifying relative.  The immigration judge found him ineligible for cancellation because he had multiple alcohol-related convictions, including a conviction for driving while intoxicated for which he received a 10-year sentence. Non-permanent resident cancellation requires, among other things, that the applicant not be convicted of an offense listed at INA 212(a)(2).  Section 212(a)(2) lists several crime-based grounds of inadmissibility, including: crimes involving moral turpitude, controlled substance offenses, and multiple criminal offenses with an aggregate sentence to confinement of 5 years or more.  Pina-Galindo was found ineligible for having multiple convictions with an aggregate sentence to 5 or more years.

The respondent argued that the legislative history indicated that Congress only intended to disqualify applicants with convictions that involved moral turpitude or a controlled substance offense, since the Conference Report stated that only aliens inadmissible under INA 212(a)(2)(A) (the subsection covering crimes involving moral turpitude and controlled substance offenses) would be ineligible for cancellation.  The Board brushed aside that argument by supposing that the Conference Report likely referred only to the most common grounds of disqualification.

The respondent also argued that the language of the grounds of ineligibility for cancellation refer to a singular conviction under 212(a)(2), while multiple convictions are required for an offense to be described under the multiple conviction with 5 year aggregate sentence ground of inadmissibility.  The Board responded that the Dictionary Act (1 U.S.C 1) provides that for any Act of Congress the singular shall include the multiple unless the context requires otherwise.