Rogelio Mendoza Chavez v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60464 Affirmed] Judge: RHB, Judge: CH, Judge: SAH. Mandate pull date is 09/25/2017 [16-60464]

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Date Filed: 08/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60464
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 2, 2017
Lyle W. Cayce
Clerk

ROGELIO MENDOZA CHAVEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A022 864 156

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Rogelio Mendoza Chavez, a native and citizen of Mexico, challenges the
determination of the Board of Immigration Appeals (BIA) that he is ineligible
for a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). Underlying this
challenge is Mendoza’s admission that, at the time he adjusted his status to
that of a lawful permanent resident in 1979, he misrepresented his status as
being unmarried.

(Because Mendoza failed to raise before the BIA his

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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contention that he was denied due process, he did not meet the statutory
mandate to exhaust administrative remedies, and we lack jurisdiction over the
issue. See 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 318–19 (5th
Cir. 2009).)
When the Department of Homeland Security (DHS) served Mendoza
with a Notice to Appear in 2015—charging him with removability pursuant to
8 U.S.C. § 1227(a)(2)(B)(i), as an alien who, after admission, had been convicted
of a violation of a law or regulation relating to a controlled substance—
Mendoza sought a § 1227(a)(1)(H) fraud waiver of removal on the grounds that
he misrepresented his marital status in becoming a lawful permanent resident.
DHS, however, refused to charge Mendoza as inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i) based on his admitted fraud or misrepresentation. Instead,
DHS continued to maintain Mendoza was removable, pursuant to
§ 1227(a)(2)(B)(i), due to his controlled-substance conviction.
The immigration judge (IJ) ordered Mendoza removed to Mexico, finding
he was ineligible for a § 1227(a)(1)(H) fraud waiver of removal because he had
“not been charged with and [was] not subject to removal on the ground that he
committed fraud or misrepresentation”. The IJ further ruled DHS was not
obligated to charge Mendoza with §§ 1227(a)(1)(A) and 1182(a)(6)(C)(i) “for
misrepresenting material facts on his application for adjustment” merely
because Mendoza “admitted he committed fraud or misrepresentation in
obtaining adjustment of status”.
The BIA dismissed Mendoza’s appeal, ruling the § 1227(a)(1)(H) fraud
waiver “is to be used to prevent removal ‘on the grounds’ of misrepresentation
or fraud”, and Mendoza did “not face removal on the grounds of
misrepresentation or fraud; rather he is removable based on a drug offense”.
Therefore, the BIA ruled Mendoza was “ineligible to seek a fraud waiver under

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[§ 1227(a)(1)(H)] as his sole ground of removability relates to a drug offense
rather than fraud or misrepresentation”.
Mendoza does not challenge the drug-offense removability. Instead, he
contends the BIA erred in ruling he was ineligible for a § 1227(a)(1)(H) fraud
waiver on the ground that he was not charged with removability based on fraud
or misrepresentation. Because the IJ’s underlying decision impacted the BIA’s
ruling, we will consider the IJ’s decision in reviewing Mendoza’s claim. E.g.,
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). This question of law is
reviewed de novo, “deferring to the BIA’s interpretation of the statutes and
regulations it administers”. Vasquez-Martinez v. Holder, 564 F.3d 712, 715
(5th Cir. 2009).
Section 1227(a)(1)(H) provides an alien shall be eligible for a waiver of
“[t]he provisions of this paragraph relating to the removal of aliens within the
United States on the ground that they were inadmissible at the time of
admission as aliens described in section 1182(a)(6)(C)(i)” to the extent the
alien, inter alia, “was otherwise admissible to the United States at the time of
such admission”, but for “fraud or misrepresentation”. Section 1182(a)(6)(C)(i)
states: “Any alien who, by fraud or willfully misrepresenting a material fact,
seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit provided
under this chapter is inadmissible”.
In Reid v. INS, 420 U.S. 619 (1975), the Court held the fraud waiver
applied only in two situations: (i) where deportation is sought on the specific
grounds of failure to comply with quota restrictions, which the Court had
previously addressed in INS v. Errico, 385 U.S. 214 (1966); and (ii) where
deportation is sought on the grounds that the alien was ineligible for admission
due to fraud or misrepresentation. Reid, 420 U.S. at 629–30. To hold otherwise

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would lead to the illogical conclusion that the fraud waiver “waives a
substantive ground for deportation . . . if the alien can affirmatively prove his
fraudulent intent at the time of entry, but grants no relief to aliens” otherwise
qualifying for the waiver “who are unable to satisfactorily establish their
dishonesty”. Reid, 420 U.S. at 629. By enacting the fraud waiver, Congress
“did not intend to arm the dishonest alien seeking admission to our country
with a sword by which he could avoid the numerous substantive grounds for
exclusion unrelated to fraud”.

Id. at 630–31.

Moreover, in holding the

petitioners in Reid did not qualify for the waiver, the Court implicitly held it
is within the INS’s discretion whether to charge an alien with fraud or
misrepresentation, and the exercise of such discretion could ultimately
determine whether the waiver was available. Id. at 623 (if “the INS were
seeking to deport petitioners on” the grounds of fraud or misrepresentation,
“they would be entitled to have applied to them the provisions of” the fraud
waiver, but the INS instead opted to deport petitioners on other grounds).
DHS did not seek to remove Mendoza on the specific grounds of failure
to comply with quota restrictions. See Reid, 420 U.S. at 623. Further, given
the Reid rationale, DHS was not obligated to charge Mendoza with
removability under § 1182(a)(6)(C)(i) based on his admitted fraud or
misrepresentation. Because Mendoza was not charged with removability for
fraud or misrepresentation—and his sole ground of removability was for a
controlled-substance conviction, see § 1227(a)(2)(B)(i)—he was ineligible for a
§ 1227(a)(1)(H) fraud waiver.
DENIED.

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