Maximiliano Rodriguez v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60909 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/10/2010 [09-60909]

Maximiliano Rodriguez v. Eric Holder, Jr.

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Case: 09-60909

Document: 00511267081

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60909 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

M A X I M I L I A N O RODRIGUEZ, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A090 644 463

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* M a x im ilia n o Rodriguez, a citizen of Mexico and a lawful permanent r e s id e n t in the United States, petitions this court for review of the BIA's decision a ffir m in g the order of an immigration judge (IJ) concluding that Rodriguez is in e lig ib le for a waiver of deportation under former 8 U.S.C. § 1182(c). His p e t it io n for review is DENIED. In 1991, Rodriguez pled guilty to transporting an illegal alien within the U n ite d 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511267081 Page: 2 No. 09-60909

Date Filed: 10/19/2010

c o n v ic t e d , this offense was codified at 8 U.S.C. § 1324(a)(1)(B).) In 2006, he was c h a r g e d with removability on the ground that this offense is an aggravated fe lo n y . See 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(N). Rodriguez c o n c e d e d 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 lis t e d in 8 U.S.C. § 1182. 8 C.F.R. § 1212.3(f)(5); Brieva-Perez v. Gonzales, 482 F .3 d 356, 362 (5th Cir. 2007). We generally lack jurisdiction to consider challenges to a removal order w h e r e the alien is ordered removed on the ground that he has committed an a g g r a v a t e d felony. 8 U.S.C. §1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F .3 d 516, 519 (5th Cir. 2006). Nonetheless, we retain jurisdiction over

c o n s t it u t io n a l and legal questions. 8 U.S.C. § 1252(a)(2)(D); Hernandez-Castillo, 4 3 6 F.3d at 519. Rodriguez challenges only the BIA's legal determination that h e was ineligible for a waiver of deportation because the ground for his removal d id not have an statutory counterpart in the grounds for inadmissibility. Thus, w e have jurisdiction to consider Rodriguez's petition for review. B r ie v a -P e r e z , 482 F.3d at 359. Because the BIA engaged in its own analysis and did not adopt the d e c is io n of the IJ, we review only the decision of the BIA; Rodriguez's legal a r g u m e n t s are reviewed de novo. See Beltran-Resendez v. INS, 207 F.3d 284, 2 8 6 (5th Cir. 2000). We defer to the BIA's reasonable interpretation of See

im m ig r a t io n regulations. Hernandez-Castillo, 436 F.3d at 519. R o d r ig u e z argues that the BIA erred in determining that the relevant c o m p a r is o n is between the grounds of inadmissibility in 8 U.S.C. § 1182(a) and h is ground of removability in 8 U.S.C. § 1101(a)(43)(N). He contends that the p r o p e r 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. § 1 3 2 4 (a )(1 )(A ). Rodriguez also argues that under 8 U.S.C. §1182(c), waivers are 2

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Date Filed: 10/19/2010

a v a ila b le to aliens who have served a sentence of less than five years on their a g g r a v a t e d felony convictions. R o d r ig u e z 's arguments are without merit. We have approved of and

a p p lie d the rule that the BIA followed here: for an alien who is removable b e c a u s e he was convicted of an aggravated felony, eligibility for a waiver of d e p o r t a t io n depends on whether the category of aggravated felony has a s t a t u t o r y counterpart in the grounds for inadmissibility. Vo v. Gonzales, 482 F .3 d 363, 368-72 (5th Cir. 2007). We have explicitly rejected the argument that S e c tio n 1182(c) relief is available to aggravated felons as long as they served less t h a n five years of imprisonment. Id. at 370-71. The BIA properly applied its c o m p a r a b ilit y analysis because the language used in Section 1101(a)(43)(N) and S e c tio n 1182(a)(6)(E)(i) is dissimilar. Congress intended the statutes to apply to d iffe r e n t conduct, and Section 1182(a)(6)(E)(i) is more comparable to S e c tio n 1227(a)(1)(E)(i). See Leon-Medina v. Holder, 351 F. App'x 881, 885 (5th C ir . 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 h o ld in g in INS v. St. Cyr, 533 U.S. 289 (2001). Specifically, that a waiver of d e p o r t a t io n remains available to aliens who could have been eligible for this r e lie f at the time of their guilty pleas because the aliens could have relied on the a v a ila b ilit y 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 o f relief because, given the conclusion that his ground of removability had no c o u n t e r p a r t in the statutory grounds for admissibility, he was ineligible for the w a iv e r 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). A c c o r d in g ly , his petition for review is DENIED.

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