United States Court of Appeals
For the First Circuit
No. 06-2454
JOSE LORENZO MEJIA-ORELLANA,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jose A. Espinosa on brief for petitioner.
Melissa S. Liebman, Office of Immigration Litigation, United
States Department of Justice, Peter D. Keisler, Assistant Attorney
General, and Emily Anne Radford, Assistant Director, on brief for
respondent.
September 6, 2007
LYNCH, Circuit Judge. Petitioner Jose Lorenzo Mejia-
Orellana, a native and citizen of Honduras, petitions for review of
a final order of removal of the Board of Immigration Appeals (BIA),
which adopted and affirmed the decision of an Immigration Judge
(IJ).
The BIA affirmed the IJ's decision that Mejia-Orellana
was ineligible for a cancellation of removal under 8 U.S.C.
§ 1229b(a) because he acquired his lawful permanent resident status
by fraud or misrepresentation and, further, that he was ineligible
for a waiver of inadmissibility under 8 U.S.C. § 1182(h). The BIA
also determined that Mejia-Orellana was not denied due process.
We affirm the BIA and deny the petition for review. In
a matter of first impression, we uphold the BIA's interpretation of
8 U.S.C. § 1229b(a) that an alien who has acquired his "lawful
permanent resident status" by fraud or misrepresentation has not
been lawfully admitted and so is ineligible for a cancellation of
removal.
I.
Mejia-Orellana entered the United States without
inspection in 1983. Two years later, he was arrested for criminal
possession of marijuana over 20 grams in violation of Florida
Statute § 893.13. He married a U.S. citizen in 1987, and in 1991
he applied for lawful permanent residence, but failed to disclose
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his 1985 arrest as he was required to do. He was granted permanent
resident status on May 19, 1991.
On April 13, 2002, Mejia-Orellana attempted to reenter
the United States from the Canadian side of Niagara Falls. When he
failed to present his I-551 Alien Registration Card, he was denied
reentry and paroled for deferred inspection in Boston.
During his inspection in Boston on July 24, 2002, Mejia-
Orellana disclosed his 1985 Florida arrest for marijuana possession
as well as a guilty plea for marijuana possession in New York in
1993. The Immigration and Naturalization Service (INS) denied
reentry and instituted removal proceedings charging Mejia-Orellana
was an inadmissible arriving alien under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), which classifies as inadmissible aliens who
have been convicted of a crime relating to a controlled substance.
Originally, the INS used the New York guilty plea as the basis for
inadmissibility. In June 2003, however, the INS amended its
charges and replaced the New York guilty plea with a September 2002
Florida conviction that stemmed from the 1985 Florida arrest.
In pleadings submitted on November 24, 2003, Mejia-
Orellana conceded his removability and designated Honduras as his
removal country. In a hearing before the IJ on the same day, he
admitted all of the INS's charges and asked for a cancellation of
removal. In response, the INS argued that Mejia-Orellana's
permanent resident status was void ab initio because of his failure
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to disclose his arrest on his application for adjustment of status
in 1991.
At three subsequent hearings, the INS raised the argument
that Mejia-Orellana's lawful permanent resident status was void ab
initio. Meanwhile, on December 6, 2004, Mejia-Orellana submitted
a memorandum in support of his application for a cancellation of
removal under 8 U.S.C. § 1229b(a) in which he admitted the
misrepresentation on his 1991 application and argued that it did
not render him inadmissible.
The IJ's oral decision on April 25, 2005 rejected all of
Mejia-Orellana's claims and ordered removal to Honduras pursuant to
8 U.S.C. § 1182(a)(2)(A)(i)(II). Following BIA precedent, the IJ
found that Mejia-Orellana's application for a cancellation of
removal under 8 U.S.C. § 1229b(a) was pretermitted because his
lawful permanent residence was obtained fraudulently and was thus
void ab initio. In addition, the IJ rejected Mejia-Orellana's
application for a waiver of inadmissibility under 8 U.S.C.
§ 1182(h).
In a brief per curiam order, the BIA adopted and affirmed
the IJ's decision. The Board held that fraud or misrepresentation
renders an acquisition of lawful permanent resident status void ab
initio, and thus Mejia-Orellana was not eligible for a cancellation
of removal. The Board noted that Mejia-Orellana did not
"meaningfully challenge on appeal" the IJ's denial of a waiver of
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inadmissibility. In addition, the BIA found that Mejia-Orellana
had ample opportunity to respond to the INS's charges of
misrepresentation and therefore rejected his due process claim.
II.
Mejia-Orellana makes several claims. First, he argues
that the IJ erred in finding him ineligible for a cancellation of
removal under 8 U.S.C. § 1229b(a). Second, he claims that his due
process rights were violated by his not being given an effective
opportunity to respond to the allegations that he lied on his
application for lawful permanent residence. Third, he argues that
the IJ erred in finding him ineligible for a waiver of
inadmissibility under 8 U.S.C. § 1182(h).
Because the BIA adopted and affirmed the IJ's ruling and
discussed some of the bases for the IJ's opinion, we review both
opinions. Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). We
review the factual findings for substantial evidence. Coelho v.
Gonzales, 452 F.3d 104, 109-10 (1st Cir. 2006); Rodriguez-Ramirez
v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005). To the extent
there are issues of law, we decide those de novo. Coelho, 452 F.3d
at 110.
A. Cancellation of Removal Under 8 U.S.C. § 1229b(a)
In order to be eligible for a cancellation of removal
under 8 U.S.C. § 1229b(a), an alien must, among other requirements,
have been "lawfully admitted for permanent residence for not less
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than 5 years." 8 U.S.C. § 1229b(a)(1). This case turns on whether
the phrase "lawfully admitted for permanent residence" in 8 U.S.C.
§ 1229b(a) excludes admissions acquired by fraud or
misrepresentation.
BIA precedent holds that aliens are ineligible for a
cancellation of removal under 8 U.S.C. § 1229b(a) where they have
acquired permanent resident status by fraud or misrepresentation,
because they have not been lawfully admitted for permanent
residence. In re Koloamatangi, 23 I. & N. Dec. 548 (B.I.A. 2003).
Koloamatangi had acquired his status by fraud, and the BIA held
that the "correct interpretation of the term 'lawfully admitted for
permanent residence' is that an alien is deemed, ab initio, never
to have obtained lawful permanent resident status once his original
ineligibility therefor is determined in proceedings." Id. at 551.
We accord Chevron deference to the BIA's interpretation.1
See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (recognizing
that "the BIA should be accorded Chevron deference as it gives
ambiguous statutory terms 'concrete meaning through a process of
case-by-case adjudication'") (quoting INS v. Cardoza-Fonseca, 480
U.S. 421, 448 (1987)); Naeem v. Gonzales, 469 F.3d 33, 36 (1st Cir.
1
Mejia-Orellana attempts to take advantage of the rule
that statutory interpretations by the IJ are not normally accorded
Chevron deference, see, e.g., Lin v. United States Dep't of
Justice, 416 F.3d 184, 189-91 (2d Cir. 2005). Here, we review the
BIA's interpretation, so Chevron deference applies.
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2006); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
467 U.S. 837, 842-43 (1984).
The BIA's interpretation is reasonable. Indeed, any
other reading would encourage fraud and misrepresentation in the
process of application for lawful permanent resident status. Other
courts have upheld this interpretation of the same phrase in
different sections of the Immigration and Nationality Act: "The
natural reading of 'lawful' connotes more than just procedural
regularity; it suggests that the substance of an action complied
with the governing law." De La Rosa v. U.S. Dep't of Homeland
Sec., 489 F.3d 551, 554 (2d Cir. 2007) (construing
8 U.S.C. § 1182(c), repealed in 1996, but still applicable in some
cases, which granted the Attorney General discretion to waive
removal for certain aliens "lawfully admitted for permanent
residence"); see also Savoury v. U.S. Att'y Gen., 449 F.3d 1307,
1317 (11th Cir. 2006) (adopting the BIA's interpretation in
Koloamatangi with respect to 8 U.S.C. § 1182(c)); Arellano-Garcia
v. Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005) (same); Monet v.
INS, 791 F.2d 752, 753-55 (9th Cir. 1986) (same); Matter of
Longstaff, 716 F.2d 1439, 1441-42 (5th Cir. 1983) (interpreting 8
U.S.C. § 1429, which requires lawful admission for permanent
residence as a prerequisite to naturalization).2
2
Our holding is consistent with Onwuamaegbu v. Gonzales,
470 F.3d 405, 409 (1st Cir. 2006). In Onwuamaegbu, we held that an
alien's misrepresentation on an application for change in status
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Because Mejia-Orellana failed to disclose his arrest on
his application for lawful permanent residence, he was never
"lawfully admitted for permanent residence" and so he is ineligible
for relief under 8 U.S.C. § 1229b(a).
B. Due Process
Mejia-Orellana claims that his due process rights were
violated because he had no notice and no reasonable opportunity to
respond to the allegations that he lied on his application for
lawful permanent residence. Initially, we doubt that Mejia-
Orellana has a cognizable property or liberty interest at stake, a
prerequisite for a colorable due process claim. Jupiter v.
Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005) (citing Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976)). The statute provides for
discretionary relief, which does not create a cognizable liberty
interest. See 8 U.S.C. § 1229b(a); Jupiter, 396 F.3d at 492.
In any event, the claim of denial of due process is
utterly without merit. Mejia-Orellana had three hearings in front
of the IJ and submitted a memorandum in support of his application
did not entitle him to claim that he had not been previously
admitted as a lawful resident and thereby escape the statute's
seven-year residency requirement. 470 F.3d at 409. We
distinguished Koloamatangi and Savoury because the focus in 8
U.S.C. § 1182(h), unlike in 8 U.S.C. § 1229b(a), is on whether a
person has been previously admitted, not on whether that admission
was lawful. Onwuamaegbu, 470 F.3d at 409.
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for a cancellation of removal after the argument that his lawful
permanent resident status was void ab initio first was raised.
C. Waiver of Inadmissibility Under 8 U.S.C. § 1182(h)
We do not consider Mejia-Orellana's claim that the IJ
erred in denying him a waiver of inadmissibility under 8 U.S.C.
§ 1182(h) because he failed to develop that claim sufficiently
before the BIA. Rodrígues-Nascimento v. Gonzales, 485 F.3d 60, 62-
63 (1st Cir. 2007); Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st
Cir. 2005).
We deny the petition for review.
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