Martinez-Perez v. Ashcroft

93 F. App'x 153

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2004
• Docket: No. 02-71092; Agency No. A41-119-544
• Status: Published

Opinion

MEMORANDUM

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To be eligible for cancellation of removal, an alien must have “resided in the United States continuously for 7 years after having been admitted in any status ...” 8 U.S.C. § 1229b(a)(2). However, § 1229b(d)(l) sets forth a stop-time provision, which provides that any period of continuous residence shall be “deemed to end” when the alien commits an offense that renders him inadmissible or removable. See also Barahona-Gomez v. Reno, 167 F.3d 1228, 1232 (9th Cir.1999), (recognizing that the continuous physical presence requirement ends upon the commission of a qualifying offense), supplemented on other grounds by 236 F.3d 1115 (9th Cir.2001).

Martinez-Perez was convicted of grand theft in 1989. This conviction ended his period of continuous presence because it was a crime of moral turpitude that rendered Martinez-Perez inadmissible under 8 U.S.C. § 1182(a)(2). See 8 U.S.C. § 1229b(d)(l); see also Rashtabadi v. I.N.S., 23 F.3d 1562, 1568 (9th Cir.1994) (recognizing grand theft as a crime of moral turpitude and an offense rendering the alien excludable); see also Matter of Perez, 22 I & N Dec. 689 (BIA1999) (holding that § 1229b(d)(l) did not have a retroactive effect when applied to petitioner’s drug offense that occurred prior to the enactment of the IIRIRA). Martinez-Perez entered the United States in 1986 and committed grand theft in 1989. Therefore, he did not accrue the required seven years of continuous residence necessary for him to qualify for cancellation of removal.

Contrary to Martinez-Perez’s contention, he did not begin to accrue time anew following his conviction. Cf. Ram, v. I.N.S., 243 F.3d 510, 518 (9th Cir.2001) (holding in an analogous context that no “second period of continuous presence” may begin following the service of an order to show cause).

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.