FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VU MINH NGUYEN, No. 17-70251 Petitioner, Agency No. v. A047-102-316 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 12, 2018 Seattle, Washington Filed August 23, 2018 Before: Richard R. Clifton and Jacqueline H. Nguyen, Circuit Judges, and Jed S. Rakoff, * District Judge. Opinion by Judge Nguyen * The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. 2 NGUYEN V. SESSIONS SUMMARY ** Immigration The panel granted Vu Minh Nguyen’s petition for review of a decision of the Board of Immigration Appeals that found Nguyen ineligible for cancellation of removal, holding that Nguyen’s admitted use of cocaine did not render him inadmissible, and therefore did not trigger the stop-time rule for cancellation of removal, because Nguyen is a lawful permanent resident not seeking admission, and remanded. To be eligible for cancellation of removal for certain permanent residents, one of the statutory prerequisites Nguyen had to establish was seven years of continuous residence in the United States. Under the stop-time rule, as relevant here, a period of continuous residence is deemed to end “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.” 8 U.S.C. § 1229b(d)(1). During his merits hearing, Nguyen admitted on cross- examination that he used cocaine in 2005. The immigration judge pretermitted Nguyen’s application for cancellation of removal on the ground that Nguyen’s commission of a drug offense rendered him inadmissible, therefore stopping his ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NGUYEN V. SESSIONS 3 accrual of continuous residence at five years. The BIA affirmed. The panel observed that the case implicates two distinct concepts in our immigration law—inadmissibility and removability—and explained various ways the difference between the two is relevant to the immigration system. The panel also explained that lawful permanent residents are under most circumstances subject to the grounds of removability, not inadmissibility, and that Nguyen was not—and could not have been—charged with being inadmissible under the circumstances. The panel held that, under the plain text of the stop-time rule, Nguyen was not rendered inadmissible by his possession of cocaine because, as a lawful permanent resident, he is not subject to the grounds of inadmissibility. Accordingly, the panel held that Nguyen’s admitted use of cocaine did not trigger the stop-time rule and, therefore, Nguyen is eligible to apply for cancellation of removal. The panel also acknowledged that its conclusion parts ways with the Fifth Circuit’s decision in Calix v. Lynch, 784 F.3d 1000 (5th Cir. 2015). The panel remanded to the BIA for consideration ...
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