Salvador Villanueva-Perez v. Eric Holder, Jr. , 480 F. App'x 870 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 18 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SALVADOR VILLANUEVA-PEREZ, No. 09-73902
Petitioner, Agency No. A036-908-040
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2012**
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
Petitioner Salvador Villanueva-Perez petitions for review of the Board of
Immigration Appeals’s order dismissing his appeal and affirming the Immigration
Judge’s decision. The Immigration Judge found Villanueva-Perez removable and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ineligible for relief. Villanueva-Perez argues that he is eligible for both
cancellation of removal, 8 U.S.C. § 1229b(a), and adjustment of status, 8 U.S.C.
§ 1255(a). We deny Villanueva-Perez’s petition for review.
Villanueva-Perez was admitted to the United States as a lawful permanent
resident in 1981. After receiving LPR status, he was convicted of three criminal
offenses. In 1991, he pleaded guilty to second degree robbery, an aggravated
felony. In 1998, he pleaded guilty to willful infliction of corporal injury to his
spouse. Then, in 2004, he pleaded nolo contendere to willful cruelty to a child.
Based on the 1998 conviction, Immigration and Customs Enforcement
charged Villanueva-Perez as removable under Immigration and Nationality Act
(INA) § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), as an “alien who at any time
after admission is convicted of a crime of domestic violence.” As relief from
removal, Villanueva requested either adjustment of status based on his marriage to
a U.S. citizen or cancellation of removal. Villanueva also requested a § 212(c)
waiver for his 1991 robbery conviction and two § 212(h) waivers for his 1998 and
2004 convictions.
Villanueva-Perez raises two legal questions regarding his eligibility for
cancellation of removal and waivers of inadmissibility under INA §§ 212(c), (h).
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law
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raised in removal proceedings upon a petition for review. Questions of law include
not only issues of statutory interpretation but also the application of law to
undisputed facts. Ramadan v. Gonzales, 479 F.3d 646, 648, 650 (9th Cir. 2007)
(per curiam). We review the BIA’s determination of purely legal questions de
novo. Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir. 2010); see also Camacho-
Cruz v. Holder, 621 F.3d 941, 942 n.1 (9th Cir. 2010) (reviewing de novo legal
determinations regarding alien’s eligibility for cancellation of removal).
I. Cancellation of Removal
Villanueva-Perez is statutorily ineligible to receive cancellation of removal.
To qualify for cancellation of removal, an LPR, such as Villanueva-Perez, must
meet three statutory requirements. 8 U.S.C. § 1229b(a). First, the LPR must be
admitted to the United States in any status for seven continuous years of residence.
Id. § 1229b(a)(2). Second, he must be admitted as an LPR for at least five years.
Id. § 1229b(a)(1). And third, he cannot have any aggravated felony convictions. 8
U.S.C. § 1229b(a)(3); see also Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1216 n.2
(9th Cir. 2010) (“Conviction of an aggravated felony renders an alien removable
and ineligible for cancellation of removal.”).
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Under 8 U.S.C. § 1229b(c)(6), cancellation of removal is unavailable to
“[a]n alien . . . who has been granted relief under [former § 212(c)] of this title.”
This provision denies cancellation of removal to any alien who has ever
received a § 212(c) waiver, “even if the waiver of deportation was granted in the
same proceeding in which cancellation of removal is sought.” Garcia-Jimenez v.
Gonzales, 488 F.3d 1082, 1084 (9th Cir. 2007).
Villanueva-Perez argues that, when read together, § 1229b(a) and
§ 1229b(c)(6) impose an impermissible retroactive effect on him because he
pleaded guilty in 1991 to second degree robbery—an aggravated felony—with a
“settled expectation” that he would remain eligible for a waiver of deportability or
inadmissibility. He further asserts that §§ 1229b(a), (c)(6) attach new legal
consequences to his guilty plea rendering him ineligible for relief from removal,
which was previously available via former § 212(c).
We have previously held that Congress clearly expressed its intent that
§ 1229b(c)(6) should apply retrospectively, and that this section does not impose
an impermissible retroactive effect on LPRs who previously received a § 212(c)
waiver. Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th Cir. 2006).
Furthermore, under INS v. St. Cyr, 533 U.S. 289 (2001), Villanueva-Perez
remains eligible for discretionary relief from deportation under former § 212(c) for
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his 1991 robbery conviction. However, despite St. Cyr’s holding, Villanueva-Perez
was convicted of two additional offenses after Congress repealed former § 212(c)
and expanded the list of aggravated felonies—including the conviction that forms
the basis of his deportability. Therefore, when Villanueva-Perez pleaded guilty to
these two offenses in 1998 and 2004, he had no “vested rights” to a § 212(c)
waiver of deportability for these convictions.
In Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007), we explained that if
an alien was eligible for a discretionary waiver of deportation when he pleaded
guilty to an offense, he should remain eligible post-IIRIRA for a waiver for that
conviction. Id. An alien with multiple criminal convictions, however, only remains
eligible for a former § 212(c) waiver if he was entitled to that waiver when he
entered his plea. Id. Villanueva-Perez, like Becker, was convicted of two offenses
after IIRIRA’s effective date. Therefore, when he entered pleas in 1998 and 2004,
he could not have harbored realistic expectations that he was eligible for waivers of
deportability or inadmissibility for all three convictions. Section 212(c) is not
applicable to these two aggravated felony convictions, and thus Villanueva-Perez
is not eligible for cancellation of removal.
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II. Adjustment of Status
Villanueva-Perez also does not qualify for adjustment of status. To be
eligible for adjustment of status, an alien must demonstrate admissibility to the
United States. 8 U.S.C. § 1255(a)(2). However, “any alien convicted of . . . a crime
involving moral turpitude . . . is [per se] inadmissible.”
8 U.S.C. § 1182(a)(2)(A)(i)(I). Villanueva was convicted of three crimes involving
moral turpitude and is therefore inadmissible to the United States.
An alien may overcome certain grounds of inadmissibility with a waiver
under INA § 212(h). Pursuant to this provision, the Attorney General may, in his
discretion, waive certain grounds of inadmissibility if removing the alien would
cause “extreme hardship” to relatives who are U.S. citizens or LPRs. 8 U.S.C.
§ 1182(h)(1)(B). Eligible aliens may also seek a waiver under former § 212(c) in
conjunction with an application to adjust status “to waive a ground of
inadmissibility that would otherwise bar the alien from establishing eligibility to
adjust his or her status.” In re Azurin, 23 I. & N. Dec. 695, 697 (BIA 2005). The
Attorney General, however, cannot grant a § 212(h) waiver to an alien “who has
previously been admitted to the United States as an [LPR] . . . if. . . since the date
of such admission the alien has been convicted of an aggravated felony.” Id. at
§ 1182(h); see also Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1054-55 (9th Cir.
6
2005) (noting that “in § 348(b) of the IIRIRA, Congress not only made aliens
convicted of aggravated felonies ineligible for these [§ 212(h)] waivers, but
expressly made this change retroactive.”).
Villanueva-Perez argues that, despite his aggravated felony conviction, he
remains eligible for a waiver of inadmissibility under § 212(h). He asserts that a
§ 212(c) waiver would “render[] the robbery offense inapplicable” to his eligibility
for a § 212(h) waiver, essentially expunging the 1991 robbery conviction from his
record for all immigration purposes.
We disagree with Villanueva-Perez’s reading of the statute because on its
face 8 U.S.C. § 1182 precludes aggravated felons from obtaining a § 212(h) waiver
of inadmissibility. Similarly, his argument that via § 212(c) he can waive his 1991
aggravated felony conviction for all immigration purposes to “clear the way for
him to apply for a § 212(h) waiver” lacks support in this court’s precedent. Even
when an alien qualifies for relief under former § 212(c), “the crimes alleged to be
grounds for deportability [or inadmissibility] do not disappear from the alien’s
record for immigration purposes.” Becker, 473 F.3d at 1004 (quoting In re
Balderas, 20 I&N Dec. 389, 391 (BIA 1991)); see also Molina-Amezcua v. INS, 6
F.3d 646, 647 (9th Cir. 1993) (per curiam) (“A waiver of deportation gives the
alien a chance to stay in the United States despite his misdeed, but it does not
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expunge the conviction.”). Even though Villanueva-Perez remains eligible for a
§ 212(c) waiver for his 1991 robbery conviction, that conviction remains an
aggravated felony, and statutorily bars him from simultaneously receiving § 212(h)
waivers of inadmissibilty or qualifying for adjustment of status.
PETITION FOR REVIEW DENIED.
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