Blanca Ochoa v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLANCA E. OCHOA, No. 16-72453
Petitioner, Agency No. A092-922-059
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 16, 2020**
Pasadena, California
Before: MURGUIA and LEE, Circuit Judges, and KORMAN,*** District Judge.
Blanca Ochoa petitions this Court to review the Board of Immigration
Appeals’s (“BIA”) order. The BIA’s order dismissed Ochoa’s appeal of an
immigration judge’s decision denying her application for two statutory waivers
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
under (1) former INA § 212(c) and (2) INA § 237(a)(1)(H). This Court has
jurisdiction under 8 U.S.C. § 1252. We review questions of law—such as statutory
eligibility for waivers—de novo. Fares v. Barr, 942 F.3d 1172, 1174 (9th Cir. 2019).
We deny the petition.
1. Ochoa is statutorily ineligible for INA § 212(c)’s waiver because she
was never lawfully admitted for permanent residence in 1990. See 8 U.S.C.
§ 1182(c) (requiring a person to be “lawfully admitted for permanent residence”
before receiving INA § 212(c)’s waiver) (repealed in 1996).1 Although Ochoa
adjusted to lawful permanent resident status in 1990 after illegally entering the
United States and residing in the United States for approximately 15 years, Ochoa
was ineligible for permanent residence in 1990 because she received three
misdemeanor convictions between 1980 and 1983, which she failed to disclose. See
8 U.S.C. § 1255a(b)(1)(C)(ii) (barring petitioners convicted of three or more
misdemeanors from adjusting to lawful permanent resident status). Ochoa was also
ineligible for permanent residence because two of her previously undisclosed
misdemeanor convictions involved crimes of moral turpitude. See 8 U.S.C.
1
Congress repealed INA § 212(c) in 1996. See INS v. St. Cyr., 533 U.S. 289, 297 (2001). Yet, despite Congress’s
repeal, a lawful permanent resident may request a § 212(c) waiver in contemporary deportation proceedings under
certain circumstances. See Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th Cir. 2011). The parties here do not
dispute that INA § 212(c) is alive in Ochoa’s case.
2
§ 1182(a)(2)(A)(i)(I) (stating that a petitioner convicted of a “crime involving moral
turpitude” is inadmissible).
2. Ochoa argues that she can invoke INA § 237(a)(1)(H)’s fraud waiver
to nullify her inadmissibility grounds and, in turn, still receive relief under INA
§ 212(c). However, Ochoa is statutorily ineligible for INA § 237(a)(1)(H)’s fraud
waiver because she was not “otherwise admissible”—apart from entry fraud—when
she received permanent resident status in 1990. See, e.g., Corona-Mendez v. Holder,
593 F.3d 1143, 1146–47 (9th Cir. 2010); see also 8 U.S.C. § 1227(a)(1)(H). Ochoa
was inadmissible on multiple grounds in 1990, including (1) her three misdemeanor
convictions and (2) her two crimes involving moral turpitude. See 8 U.S.C.
§ 1255a(b)(1)(C)(ii); 8 U.S.C. § 1182(a)(2)(A)(i)(I). Accordingly, Ochoa cannot
use INA § 237(a)(1)(H)’s fraud waiver to nullify her inadmissibility grounds.
PETITION DENIED
3