Rigoberto Trejo v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [10-60076 Affirmed ] Judge: EGJ , Judge: JWE , Judge: CH Mandate pull date is 05/26/2011 [10-60076]
Case: 10-60076 Document: 00511434133 Page: 1 Date Filed: 04/04/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
April 4, 2011
Lyle W. Cayce
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
A076 436 139
Before JOLLY, ELROD, and HAYNES, Circuit Judges.
Rigoberto Trejo, a citizen of Mexico, petitions this court for review of a
Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an
Immigration Judge’s (“IJ”) decision ordering him removed from the United
States. Trejo entered the United States in January 1997. Trejo’s father, who
was a legal permanent resident at the time, filed an immigrant visa petition on
Trejo’s behalf. In September 2001, Trejo applied for a nonimmigrant “V-visa,”
pursuant to 8 U.S.C. § 1101(a)(15)(V), which provides nonimmigrant status to
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
Case: 10-60076 Document: 00511434133 Page: 2 Date Filed: 04/04/2011
an alien who is the beneficiary of an immigrant relative petition that was filed
on or before December 21, 2000, subject to certain enumerated conditions.
Trejo's application was approved on November 20, 2001, and was valid until
December 8, 2001. Almost a year later, Trejo was convicted of the fraudulent
use of a social security number and removal proceedings were initiated. The
Department of Homeland Security (“DHS”) alleged that Trejo was removable
pursuant to 8 U.S.C. § 1227(a)(1)(B) because he had remained in the country
longer than his visa permitted.
During the course of Trejo’s lengthy removal proceedings, Trejo requested
that his case be administratively closed so that he could apply to DHS for an
extension of his “V” nonimmigrant status. The IJ granted his request. DHS
subsequently denied Trejo's application for “V” nonimmigrant status, however,
finding him inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien
convicted of a crime involving moral turpitude: his conviction for fraudulent use
of a social security number.
When Trejo’s removal proceeding recommenced in 2006, he submitted an
application for a waiver of inadmissibility under § 1182, also known as a
“§ 212(h) waiver.” Such a waiver, if granted, would allow Trejo to overcome the
ground of inadmissibility on which DHS denied his application for “V’”
nonimmigrant status. The IJ determined that she did not have jurisdiction to
review his waiver application and denied his request for a continuance so that
he could await the availability of a visa. The IJ noted that Trejo did not have a
visa number available to him through which he could apply for adjustment of
status; that he had not identified any other type of relief for which he might be
eligible; and that he had not submitted any other application for admission along
with the request for a waiver of inadmissibility.1 Because Trejo's waiver request
Although Trejo had previously filed an application for adjustment of status in the
proceedings, the IJ had denied that application in 2005.
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DHS’s denial of his “V” nonimmigrant status
application—over which the IJ had no jurisdiction—the IJ held that it had no
jurisdiction to consider his application for a waiver for admissibility. The BIA
agreed, and Trejo timely filed a petition for review in this court.
We review the BIA’s findings of fact for substantial evidence and its legal
determinations de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). Although we do not have jurisdiction “to review a decision of the Attorney
General to grant or deny a § 212(h) waiver, our court has jurisdiction . . . to
review the question of law presented by [Trejo’s] challenge to the BIA’s
construction of § 212(h).” Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008)
(internal quotation marks and citations omitted).
We afford substantial
deference to the BIA’s interpretation of immigration statutes, as well as its own
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (citing
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844
The regulations governing removal proceedings specify that an IJ may
entertain an application for a § 212(h) waiver “in conjunction with” an
application for adjustment of status “made to an immigration judge.” 8 C.F.R.
§ 1240.11(a)(2). Trejo made no application for adjustment of status, nor could
he have, as no immigrant visa was immediately available to him. See 8 U.S.C.
§ 1255(a). Trejo instead argues that the IJ should have considered the waiver
in conjunction with his “V” nonimmigrant visa application, made to DHS. The
IJ has no jurisdiction over that application, however.
Under the regulations, aliens eligible for a “V” visa “may apply to the
Service to obtain” one. 8 C.F.R. § 214.15(b). The role of the IJ is limited to
administratively closing removal proceedings “in order to allow the alien to
pursue an application . . . with the Service.” Id. § 214.15(l). Should DHS decide
that the alien is ineligible, it must recommence removal proceedings, as it did
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in this case. Id. Thus, “immigration judges have no jurisdiction to decide visa
petitions.” In re Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987). Allowing the IJ
to consider a § 212(h) waiver in conjunction with a denied visa application, as
Trejo urges, would effectively allow the IJ to adjudicate the application—a power
that the regulations reserve to DHS.
Trejo also suggests that the IJ had jurisdiction to consider the § 212(h)
waiver, even in the absence of an application for adjustment of status, through
the exercise of her broad nunc pro tunc authority. While this authority is broad,
it does have limits. The immigration courts have “discretion to allow nunc pro
tunc proceedings in two well defined situations: (1) where the only ground of
deportability or inadmissibility would thereby be eliminated; and (2) where the
alien would receive a grant of adjustment of status in connection with the grant
of any appropriate waivers.” Romero-Rodriguez v. Gonzales, 488 F.3d 672, 679
(5th Cir. 2007) (internal quotation marks omitted); see also In re Garcia-Linares,
21 I. & N. Dec. 254, 257-58 (BIA 1996) (“[T]he instance in which such relief could
be granted have been limited to those in which the grant would effect a complete
disposition of the case. . . .”). Neither situation applies here. Trejo faced an
additional ground of deportability—overstaying his visa—and, as already
discussed, Trejo was not eligible for adjustment of status. Thus, even assuming
without deciding that the IJ’s nunc pro tunc authority would allow her to
entertain a freestanding request for a § 212(h) waiver, that authority was not
broad enough to reach his case.
Finally, Trejo argues that the BIA’s construction of the statute and
regulations provides no opportunity for aliens applying for “V” visas from within
this country to seek a waiver of inadmissibility, which frustrates Congress’s
purpose of promoting immigrant family reunification.
Contrary to Trejo’s
argument, the U.S. Citizenship and Immigration Service’s Adjudicator’s Field
Manual states that “V” visa applicants “who are inadmissible under section
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212(a) of the Act may request a waiver of such grounds of inadmissibility
pursuant to section 212(d)(3)(A) of the Act.” A.F.M. § 37.4(f)(2). Thus, an
applicant may request a waiver from DHS, which, unlike the immigration court,
has the power to adjudicate the visa application.
Even if Trejo’s construction—allowing an IJ to adjudicate a freestanding
§ 212(h) waiver—might be more consistent with Congress’s goal of keeping
families together, we are not free to overlook a statute’s plain language to
further a broader statutory purpose. See Barnhart v. Sigmon Coal Co., 534 U.S.
438, 461-62 (2002). Here, the applicable statutes and regulations compel the
conclusion that the IJ did not have jurisdiction over Trejo’s § 212(h) waiver
application. Accordingly, we DENY Trejo’s petition for review.
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