For Adalberto Rodriguez-Benitez, Petitioner: Jennifer Walker Gates, Walker Gates Vela, P.L.L.C., Austin, TX.
For Eric H. Holder, Jr., U.S. Attorney General, Respondent: Lance Lomond Jolley, Trial Attorney, Jesse Matthew Bless, Tangerlia Cox, James Adelbert Hurley, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.
Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
Petition for Review of an Order of the Board of Immigration Appeals
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Adalberto Rodriguez-Benitez appeals the Board of Immigration Appeals' (" BIA" ) decision affirming the denial of his application for cancellation of removal for victims of domestic violence. The Immigration Judge (" IJ" ) found Rodriguez-Benitez ineligible for relief due to a prior narcotics conviction. Rodriguez-Benitez claims the narcotics conviction cannot be grounds for finding him " inadmissible," and therefore ineligible for relief, because the government did not charge that conviction in his Notice to Appear (" NTA" ). He also argues the BIA erred in holding that the Attorney General's authority to waive convictions in this context is limited to domestic violence and stalking convictions. We dismiss his petition for review.
Rodriguez-Benitez was born in Mexico. During his childhood there, he was subjected to extremely violent physical abuse at the hands of his father, who had United States Legal Permanent Resident status. In approximately 1995 at age fifteen, Rodriguez-Benitez immigrated without being admitted to the United States, where he has four United States citizen children. He has been arrested three times. The first two occasions involved domestic violence-related incidents; the first was dismissed and the second resulted in a Judgment of Community Supervision for eighteen months. His third arrest resulted in a conviction for possession of less than two ounces of marijuana. After this arrest, Rodriguez-Benitez was detained by United States Immigration and Customs Enforcement and issued an NTA that charged him as an alien present in the United States without having been admitted or paroled pursuant to the Immigration and Nationality Act (" INA" ) § 212(a)(6)(A)(i). The NTA did not charge him with inadmissibility based on his conviction for possession of marijuana. He admitted the factual allegations in the NTA and conceded removability, but applied for relief in the form of Special Rule Cancellation of Removal for victims of domestic violence under INA § 240A(b)(2).
The IJ denied Rodriguez-Benitez's application for relief on January 25, 2011. The IJ found that Rodriguez-Benitez's 2010 conviction for marijuana possession made him inadmissible under INA § 212(a)(2), and therefore he was unable to show he was " not inadmissible" under INA § 240A(b)(2)(A)(iv). The IJ also found that Rodriguez-Benitez was not eligible for a waiver of ineligibility for cancellation of removal under INA § 240A(b)(5) because his conviction was for marijuana and not domestic violence or stalking.
Rodriguez-Benitez appealed the IJ's decision to the BIA, which affirmed on July 10, 2013. He timely appealed.
The REAL ID Act of 2005 grants this Court " subject-matter jurisdiction over constitutional claims and questions of law that were exhausted before the BIA."  " ...