Genaro Salazar v. Eric Holder, Jr.

Case: 09-60339 Document: 00511117545 Page: 1 Date Filed: 05/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 20, 2010
No. 09-60339
Summary Calendar Lyle W. Cayce
Clerk
GENARO SALAZAR,
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. A079 011 977
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Genaro Salazar petitions this court for review of an order from the Board
of Immigration Appeals (BIA). The BIA affirmed the Immigration Judge’s (IJ)
decision granting the respondent’s motion to pretermit Salazar’s request to
adjust his status and determining that Salazar was ineligible for a waiver of
inadmissibility. The BIA found that Salazar was statutorily ineligible for
adjustment of status pursuant to 8 U.S.C. § 1255 because he was inadmissible
under 8 U.S.C. § 1182(a)(6)(E)(i) as a result of his prior conviction for smuggling
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60339 Document: 00511117545 Page: 2 Date Filed: 05/20/2010
No. 09-60339
aliens. The BIA further determined that Salazar was statutorily ineligible for
an 8 U.S.C. § 1182(h) waiver because he was found inadmissible under
§ 1182(a)(6) rather than § 1182(a)(2) as required for a § 1182(h) waiver.
When considering a petition for review, this court reviews the BIA’s legal
decisions de novo, although this court defers to reasonable interpretations of
agency regulations. Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.
2006).
Under § 1182(a)(6)(E)(i), any alien who “knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to enter the
United States in violation of law is inadmissible.” Thus, the IJ’s finding that
Salazar was an alien smuggler made him inadmissible and therefore ineligible
for adjustment of status under § 1255. See Soriano v. Gonzales, 484 F.3d 318,
321 (5th Cir. 2007). Salazar argues that he is not inadmissible under
§ 1182(a)(6)(E)(i) based on the BIA’s unpublished decision in In re Popoca, No.
A90 751 142, 2006 WL 729766 (BIA Feb. 9, 2006). Popoca is inapplicable here,
and, as such, the BIA properly affirmed the IJ’s decision.
Salazar also appears to argue that he is entitled to a § 1182(h) waiver
because that section violates his constitutional rights. His argument is without
merit. That is, Salazar cannot and has not overcome the fact that he is
statutorily ineligible for a § 1182(h) waiver because he was found inadmissible
under § 1182(a)(6)(E)(i) instead of § 1182(a)(2), regardless of any alleged
constitutional infirmities in § 1182(h). Accordingly, Salazar’s petition for review
is DENIED.
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