Charles Stephens v. Eric Holder, Jr.

Case: 12-60390 Document: 00512176406 Page: 1 Date Filed: 03/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 15, 2013
No. 12-60390
Summary Calendar Lyle W. Cayce
Clerk
CHARLES STEPHENS,
Petitioner
v.
ERIC H. HOLDER, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A038 541 554
Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Charles Stephens is a citizen of the United Kingdom, a native of Guyana,
and a Lawful Permanent Resident (LPR) of the United States. This court is now
presented with Stephens’s petition for review of a decision of the Board of
Immigration Appeals (BIA) upholding the Immigration Judge’s order finding
him removable due to his prior conviction for an aggravated felony. Consistent
with his position before the BIA, Stephens argues that he is entitled to a waiver
of inadmissibility and that 8 U.S.C. § 1182(h) does not preclude him from
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-60390 Document: 00512176406 Page: 2 Date Filed: 03/15/2013
No. 12-60390
seeking such relief because he achieved LPR status after he first entered this
country. Under Stephens’s view, his case is substantially similar to Martinez v.
Mukasey, 519 F.3d 532 (5th Cir. 2008).
We typically lack jurisdiction to review a decision of the BIA ordering an
alien removed due to his prior conviction for an aggravated felony. Larin-Ulloa
v. Gonzales, 462 F.3d 456, 460-61 (5th Cir. 2006). However, we retain
jurisdiction to consider legal questions such as the issue whether Stephens is
eligible for a waiver of inadmissibility under § 1182(h). See Martinez, 519 F.3d
at 541. We conduct a de novo review of the BIA’s legal determinations, and its
factual findings are reviewed for substantial evidence. Carranza-De Salinas v.
Holder, 700 F.3d 768, 772 (5th Cir. 2012).
To the extent that Stephens contends that his case is squarely on point
with, and thus controlled by, Martinez, we disagree. In contrast to Martinez, 519
F.3d at 536, 543-44, the record in the instant case shows that Stephens obtained
LPR status outside of the United States and was admitted to this country as an
LPR. This distinction is material and dispositive. Additionally, as explained in
Molina-Ramirez v. Holder, 362 F. App’x 387, 393 (5th Cir. 2010), counsel
conceded that Stephens was admitted as an LPR, and “the BIA may reasonably
have concluded that [Stephens] could not satisfy Martinez’s requirements for a
§ 212(h) waiver because of [this] concession.” Although nonbinding, Molina-
Ramirez is nonetheless “highly persuasive.” See United States v. Pino Gonzalez,
636 F.3d 157, 160 (5th Cir.), cert. denied, 132 S. Ct. 178 (2011).
Further, Stephens does not advance a persuasive argument to show that
he is entitled to the relief sought. Rather, he simply cites Martinez and insists
that his case should have the same result as that one. This is not enough for
Stephens to show that he should receive § 1182(h) relief. See Opie v. INS, 66
F.3d 737, 739 (5th Cir. 1995). Accordingly, his petition for review is DENIED.
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