Maximiliano Rodriguez v. Eric Holder, Jr. , 408 F. App'x 775 ( 2010 )

Case: 09-60909 Document: 00511267081 Page: 1 Date Filed: 10/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2010
No. 09-60909
Summary Calendar Lyle W. Cayce
Clerk
MAXIMILIANO RODRIGUEZ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 644 463
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Maximiliano Rodriguez, a citizen of Mexico and a lawful permanent
resident in the United States, petitions this court for review of the BIA’s decision
affirming the order of an immigration judge (IJ) concluding that Rodriguez is
ineligible for a waiver of deportation under former 8 U.S.C. § 1182(c). His
petition for review is DENIED.
In 1991, Rodriguez pled guilty to transporting an illegal alien within the
United States, a violation of 8 U.S.C. § 1324(a)(1)(A)(ii). (When Rodriguez was
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-60909
convicted, this offense was codified at 8 U.S.C. § 1324(a)(1)(B).) In 2006, he was
charged with removability on the ground that this offense is an aggravated
felony. See 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(N). Rodriguez
conceded that he was removable and then applied for a waiver under the former
8 U.S.C. § 1182(c). To be eligible for a waiver, the alien must be removable on
a ground that has a statutory counterpart in the grounds for inadmissibility
listed in 8 U.S.C. § 1182. 8 C.F.R. § 1212.3(f)(5); Brieva-Perez v. Gonzales, 482
F.3d 356, 362 (5th Cir. 2007).
We generally lack jurisdiction to consider challenges to a removal order
where the alien is ordered removed on the ground that he has committed an
aggravated felony. 8 U.S.C. §1252(a)(2)(C); Hernandez-Castillo v. Moore, 436
F.3d 516, 519 (5th Cir. 2006). Nonetheless, we retain jurisdiction over
constitutional and legal questions. 8 U.S.C. § 1252(a)(2)(D); Hernandez-Castillo,
436 F.3d at 519. Rodriguez challenges only the BIA’s legal determination that
he was ineligible for a waiver of deportation because the ground for his removal
did not have an statutory counterpart in the grounds for inadmissibility. Thus,
we have jurisdiction to consider Rodriguez’s petition for review. See
Brieva-Perez, 482 F.3d at 359.
Because the BIA engaged in its own analysis and did not adopt the
decision of the IJ, we review only the decision of the BIA; Rodriguez’s legal
arguments are reviewed de novo. See Beltran-Resendez v. INS, 207 F.3d 284,
286 (5th Cir. 2000). We defer to the BIA’s reasonable interpretation of
immigration regulations. Hernandez-Castillo, 436 F.3d at 519.
Rodriguez argues that the BIA erred in determining that the relevant
comparison is between the grounds of inadmissibility in 8 U.S.C. § 1182(a) and
his ground of removability in 8 U.S.C. § 1101(a)(43)(N). He contends that the
proper comparison is between the ground of inadmissibility, which he says is 8
U.S.C. § 1182(a)(6)(E)(i), and the offense of conviction, here, 8 U.S.C. §
1324(a)(1)(A). Rodriguez also argues that under 8 U.S.C. §1182(c), waivers are
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No. 09-60909
available to aliens who have served a sentence of less than five years on their
aggravated felony convictions.
Rodriguez’s arguments are without merit. We have approved of and
applied the rule that the BIA followed here: for an alien who is removable
because he was convicted of an aggravated felony, eligibility for a waiver of
deportation depends on whether the category of aggravated felony has a
statutory counterpart in the grounds for inadmissibility. Vo v. Gonzales, 482
F.3d 363, 368-72 (5th Cir. 2007). We have explicitly rejected the argument that
Section 1182(c) relief is available to aggravated felons as long as they served less
than five years of imprisonment. Id. at 370-71. The BIA properly applied its
comparability analysis because the language used in Section 1101(a)(43)(N) and
Section 1182(a)(6)(E)(i) is dissimilar. Congress intended the statutes to apply to
different conduct, and Section 1182(a)(6)(E)(i) is more comparable to
Section 1227(a)(1)(E)(i). See Leon-Medina v. Holder, 351 F. App’x 881, 885 (5th
Cir. 2009); Popoca v. Holder, 320 F. App’x 252, 258-59 (5th Cir. 2009).
Finally, Rodriguez argues that the BIA’s decision improperly restricted the
holding in INS v. St. Cyr, 533 U.S. 289 (2001). Specifically, that a waiver of
deportation remains available to aliens who could have been eligible for this
relief at the time of their guilty pleas because the aliens could have relied on the
availability of this relief in deciding to plead guilty. St. Cyr, 533 U.S. at 326.
Rodriguez, however, cannot show that he reasonably relied on the availability
of relief because, given the conclusion that his ground of removability had no
counterpart in the statutory grounds for admissibility, he was ineligible for the
waiver at the time he pled guilty. See Vo, 482 F.3d at 370.
Rodriguez is statutorily ineligible for relief under 8 U.S.C. § 1182(c).
Accordingly, his petition for review is DENIED.
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