Rudnitskyy v. Garland

82 F.4th 742

Petr Vasilyevich RUDNITSKYY, Petitioner, v. Merrick GARLAND, Attorney General, Respondent.

No. 21-1098

United States Court of Appeals, Ninth Circuit

Argued and Submitted August 21, 2023 Portland, Oregon

Filed September 14, 2023

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX4-740

Brian P. Conry (argued), Brian Patrick Conry PC, Portland, Oregon, for Petitioner.

Katie E. Rourke (argued), Corey L. Farrell, and Colin J. Tucker, Trial Attorneys; Sabatino F. Leo, Assistant Director; Brian M. Boynton, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Mark J. Bennett, Lawrence VanDyke, and Holly A. Thomas, Circuit Judges.

OPINION

VANDYKE, Circuit Judge:

Petitioner has been a lawful permanent resident (LPR) of the United States since 2003. Since that time, he has been convicted of various crimes, including theft, criminal trespass, a DUI, and, as relevant here, possession of heroin in violation of Oregon law. After he received a notice to appear (NTA) initiating removal proceedings, Petitioner applied for cancellation of removal. Such discretionary relief is available to noncitizens who establish a continuous residence in the United States for seven years, subject to a "stop-time rule." This case turns on the interpretation of the stop-time rule because Petitioner committed the heroin offense within the seven-year period but was convicted after the period ended.

We conclude that the agency did not err in deciding that the stop-time rule is calculated from the date Petitioner committed a criminal offense that rendered him removable, rather than the date he was convicted. We do so because: (i) the text of the stop-time rule set forth in 8 U.S.C. § 1229b(d)(1)(B) provides that once a conviction renders a noncitizen removable, the commission of an underlying offense is deemed to terminate the seven years of continuous residence required to be eligible for cancellation of removal; (ii) the Supreme Court adopted this interpretation in Barton v. Barr, — U.S. —, 140 S. Ct. 1442, 1449-50, 206 L.Ed.2d 682 (2020); and (iii) every other circuit to decide the question (as well as the Board of Immigration Appeals (BIA)) agrees.

I.

Due to the statutory complexities at issue in this case, we begin with a brief summary of the relevant Immigration and Nationality Act (INA) provisions that govern the application of the stop-time rule. We then turn to the factual and procedural background.

A.

In general, an inadmissible or deportable LPR may qualify for discretionary cancellation of removal if he has been lawfully admitted for permanent residence for at least five years and has resided in the United States continuously for seven years without being convicted of an aggravated felony. 8 U.S.C. § 1229b(a).

That period of continuous residence is subject to the stop-time rule. Specifically,

any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the alien is served a[n] [NTA] . . . or (B) 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 removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

8 U.S.C. § 1229b(d)(1) (emphases added).

In other words, where a noncitizen has become removable due to a conviction, the stop-time rule retroactively cuts off the continuous residence period as of the date an offense is committed. But removability itself turns on the fact of conviction, because a noncitizen is "removable" if he is "inadmissible" under 8 U.S.C. § 1182 or "deportable" under 8 U.S.C. § 1227, and those provisions turn on a conviction. 8 U.S.C. § 1229a(e)(2).¹ Thus, a conviction rendering a noncitizen removable will refer back to a date of commission to determine whether the stop-time rule applies.

As relevant here, then, an LPR becomes removable once he is convicted of a qualifying offense, and if the LPR had committed an act in violation of a state's drug statute or regulation within seven years of being admitted, the Attorney General lacks discretion to cancel the LPR's removal.

B.

Petitioner is a native and citizen of Ukraine who entered the United States as a refugee in 2003. Two years later, his status was adjusted to that of an LPR. In 2007, Petitioner began to develop a substantial criminal record in Oregon, resulting in convictions for criminal trespass, theft, and DUI. As relevant here, moreover, Petitioner possessed heroin unlawfully on October 14, 2009, just months shy of satisfying the INA's seven-year continuous residence requirement. On November 2, 2009, he was charged with heroin possession in violation of Oregon Revised Statute section 475.854, a "Class B Felony," and on January 20, 2011, after the seven-year period had ended, Petitioner was convicted.

Shortly after the conviction, Petitioner was served an NTA, and the agency initiated removal proceedings. Petitioner successfully moved to terminate the proceedings pending the appeal of his conviction. His conviction was affirmed in October 2014. State v. Rudnitskyy, 266 Or.App. 560, 338 P.3d 742, 746 (2014). A new NTA was served on Petitioner in August 2015.

In late 2015, Petitioner appeared before the Immigration Judge (IJ) with counsel and conceded removability, but he twice obtained a continuance pending his efforts to obtain post-conviction relief. In July 2016, Petitioner appeared again before the IJ, this time with applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In November 2016, he also applied for cancellation of removal. In August 2018, Petitioner moved for (and was denied) termination of removal proceedings under Pereira v. Sessions, — U.S. —, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), on the theory that his NTA was defective and incomplete, and thereby deprived the agency of jurisdiction.

In September 2018, Petitioner moved to continue the removal proceedings to appeal the denial of post-conviction relief, but the IJ denied the continuance motion for failure to show good cause and pretermitted his application for cancellation of removal. The IJ specifically held that Petitioner failed to assert more than a speculative claim that he was likely to receive post-conviction relief. And, in any event, Petitioner did not show how post-conviction relief would materially affect the removal proceedings, given that (i) as a result of Petitioner's conviction, he was statutorily ineligible for cancellation of removal because the commission of the offense he was later convicted of terminated the continuous residence period, (ii) Petitioner did not challenge the date of the commission of the offense, (iii) Petitioner conceded that the conviction rendered him removable, and (iv) Petitioner did not show that post-conviction relief would expunge the conviction from his indisputably "long criminal record." In applying the stop-time rule, the IJ concluded that:

[O]nly six years, six months, and 24 days have lapsed between his admission to the United States and his commission of a crime that . . . renders him removable under . . . [the INA]. That is approximately five months short of the seven-year [continuous] residence requirement.

Finally, in November 2018, Petitioner appeared before the IJ for his merits hearing and withdrew his applications for asylum, withholding of removal, CAT relief, and cancellation of removal, resulting in the IJ's denial of those applications. The IJ's summary order directed that Petitioner be removed to Ukraine and indicated that all his applications for relief were withdrawn.

Before the BIA, Petitioner appealed the IJ's denial of his motions to terminate and to continue the proceedings. He argued that the IJ erred in holding that the stop-time rule terminates a convicted alien's continuous residence period as measured from the date an offense is committed rather than the date of the conviction (i.e., the date the alien becomes removable).² Petitioner also argued that deportation would constitute a cruel and unusual punishment (or an "unconstitutionally disproportionate penalty") in violation of the Eighth Amendment, and that the IJ erred in denying his jurisdictional Pereira challenge to the completeness of the NTA.

The BIA dismissed the appeal in October 2021. The BIA cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and specifically agreed with the IJ that (i) Petitioner became deportable once he was convicted of the controlled substance offense and that, because the offense was committed within seven years of Petitioner's admission as an LPR, the stop-time rule rendered him ineligible for cancellation of removal; (ii) Petitioner's Pereira argument fails under controlling case law; and (iii) orders of removal do not constitute cruel and unusual punishment. With respect to the stop-time rule, the BIA specifically held that "the date of the commission of the offense rather than the date of conviction is dispositive for the purpose of establishing eligibility for cancellation of removal."

The instant petition for review was filed together with a motion for stay of removal. The petition is focused solely on the stop-time rule issue. Petitioner's opening brief argues that Petitioner never admitted he committed the underlying offense, that he was not statutorily "rendered" deportable until his conviction was final (after appeals had been exhausted), and that therefore the stop-time rule is measurable from the date of his conviction—which falls outside the statutory seven-year window—and not the date of his offense.³

Petitioner also appears to suggest that the term "whichever is earliest" in the stop-time rule provision means that LPRs are generally only subject to...