United States Court of Appeals
For the First Circuit
No. 08-1442
VINICIO MEJIA-RODRIGUEZ,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Jose A. Espinosa for petitioner.
James E. Grimes, Senior Litigation Counsel, Office of
Immigration Litigation, Gregory G. Katsas, Assistant Attorney
General, Civil Division, and Linda S. Wernery, Assistant
Director, for respondent.
February 25, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. In this immigration case, petitioner
Vinicio Mejia-Rodriguez seeks review of a final order of removal,
arguing that the Board of Immigration Appeals ("BIA") erred in
finding that (1) he was not eligible for an exception to the
inadmissibility rules for those who have committed certain crimes
and that (2) he was ineligible for discretionary relief from
removal by the Attorney General. The petition does involve one
issue which this court has not addressed before: the definition of
"maximum penalty possible" in 8 U.S.C. § 1182(a)(2)(A)(ii)(II), the
petty offense exception to 8 U.S.C. § 1182(a)(2)(A)(i)(I), which
otherwise renders inadmissible aliens who have committed crimes of
moral turpitude. On that point, we hold that the term "maximum
penalty possible" is determined in reference to the relevant
statutory range of imprisonment and not the federal Sentencing
Guidelines range. In this we agree with the Ninth Circuit Court of
Appeals. See Mendez-Mendez v. Mukasey, 525 F.3d 828, 832-35 (9th
Cir. 2008). We deny the petition for review.
Mejia-Rodriguez, who is from the Dominican Republic,
became a lawful permanent resident of the United States on August
14, 1994. He abused this privilege by committing two felonies. He
was convicted on May 28, 1999 of selling telecommunication devices
altered to obtain unauthorized use of services, in violation of 18
U.S.C. § 1029(a)(7), and of conspiracy to commit fraud in
connection with access devices, in violation of 18 U.S.C.
-2-
§ 1029(b)(2). These crimes require proof of an intent to defraud.
The statutory maximum sentence was ten years' imprisonment for the
first offense, id. § 1029(c)(1)(A)(i), and five years' imprisonment
for the second, id. § 1029(b)(2), (c)(1)(A)(i). His actual
sentence was three years' probation.
Mejia-Rodriguez later left the United States and then
applied for admission into the country at Logan Airport in Boston
on February 28, 2005. Lawful permanent residents who have
committed an offense under 8 U.S.C. § 1182(a)(2) are considered to
be arriving aliens when they present themselves for admission into
the United States. See 8 U.S.C. § 1101(a)(13)(C)(v); De Vega v.
Gonzales, 503 F.3d 45, 46-47 (1st Cir. 2007). Because of his
criminal convictions, Mejia-Rodriguez was served with a Notice to
Appear, alleging that he was inadmissible and removable from the
United States as an alien who has been convicted of a crime
involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). There
is no dispute that he had been convicted of crimes involving moral
turpitude.
The removal hearings before an Immigration Judge ("IJ")
were held on November 23, 2005, and over six months later, on June
15, 2006. Mejia-Rodriguez admitted the factual allegations and
conceded removability. Not surprisingly, the IJ's June 15, 2006
decision found that Mejia-Rodriguez was removable. The decision
also held that Mejia-Rodriguez was ineligible for cancellation of
-3-
removal under 8 U.S.C. § 1229b(a) because his time period of
physical presence and residence in the United States stopped as a
matter of law in 1997 when he committed his criminal offenses, and
those offenses were less than five years from the date of Mejia-
Rodriguez's admission into the United States as a lawful permanent
resident. Furthermore, the IJ found that Mejia-Rodriguez was
ineligible for the discretionary relief of waiver of
inadmissibility under 8 U.S.C. § 1182(h) because no visa petition
had been filed on his behalf and because he could not meet the
family hardship requirement because he was estranged from his
wife.1
Mejia-Rodriguez appealed to the BIA on July 13, 2006,
arguing he was not removable because he fit within the petty
offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). He
argued that the BIA must measure the "maximum penalty possible"
under the exception by reference only to the Sentencing Guidelines,
which suggested a sentence of four to ten months of confinement.
The BIA rejected this argument and affirmed his ineligibility for
cancellation of removal under § 1229b(a) and waiver under
§ 1182(h).
Mejia-Rodriguez's timely petition for review to this
court makes three arguments. First, he claims that had he
1
Mejia-Rodriguez later revealed that he and his wife were
divorced.
-4-
remained in the United States and not gone out of the country, he
would have been ineligible for removal and thus that his
constitutional rights under the Equal Protection Clause have been
violated because the distinction was irrational. Second, he argues
that the petty offense exception must be read in light of the
Guidelines and not the statutory maximums. Third, he alleges that
he was eligible for a waiver under 8 U.S.C. § 1182(h) because he
has "at least one U.S. citizen child."2
We have jurisdiction to review the first two claims but
not the third. Our review in this case, under the REAL ID Act, is
restricted to constitutional claims or questions of law. See 8
U.S.C. § 1252(a)(2)(C), (a)(2)(D); De Araujo v. Gonzales, 457 F.3d
146, 153 (1st Cir. 2006); see also Conteh v. Gonzales, 461 F.3d 45,
63-64 (1st Cir. 2006)(discussing restrictions on judicial review in
cases involving waiver of inadmissibility under § 1182(h)).
The equal protection argument,3 cursorily made, is
without merit, and is based on mistakes of both law and fact. To
start, Mejia-Rodriguez's argument is based entirely on the wrong
section of the immigration statute. Mejia-Rodriguez asserts that
the application of 8 U.S.C. § 1182(a)(2)(A)(i)(I) violated his
2
Mejia-Rodriguez does not challenge the denial of
cancellation of removal under § 1229b(a).
3
Mejia-Rodriguez describes his claim in terms of due
process, but it is more fairly characterized as an equal protection
claim. See Malagon de Fuentes v. Gonzales, 462 F.3d 498, 503 (5th
Cir. 2006).
-5-
constitutional rights because, if he had remained in the country,
he would not have been subject to removal, and there is no
justification for distinguishing between him and a lawful permanent
resident who had not left as he did. But § 1182(a)(2)(A)(i)(I) is
not relevant to this distinction. What is relevant is 8 U.S.C.
§ 1101(a)(13)(C)(v), which is the provision that renders him an
"arriving alien" and so subject to charges of inadmissibility.
Mejia-Rodriguez's argument is also based on a factual
mistake. He would have been subject to removal even if he had
remained in the United States, given that he had been convicted of
a crime involving moral turpitude within five years of his
admission. See 8 U.S.C. § 1227(a)(2)(A)(i).
In any event, these congressionally determined categories
are subject at most to rational basis review. See Almon v. Reno,
192 F.3d 28, 31 (1st Cir. 1999); see also Malagon de Fuentes v.
Gonzales, 462 F.3d 498, 503-04 (5th Cir. 2006). A lawful permanent
resident who departs the country and attempts to return is not
similarly situated to a lawful permanent resident who never left.
See Landon v. Plasencia, 459 U.S. 21, 31 (1982); United States ex
rel Volpe v. Smith, 289 U.S. 422, 425-26 (1933); Malagon de
Fuentes, 462 F.3d at 503-04.
His second argument concerning interpretation of the
petty offense exception involves a pure issue of law and is
reviewed de novo. See Elien v. Ashcroft, 364 F.3d 392, 396 (1st
-6-
Cir. 2004); see also Mendez-Mendez, 525 F.3d at 832. We will put
aside the fact that the petty offense exception only applies to
aliens who have committed only one crime, see 8 U.S.C. §
1182(a)(2)(A)(ii), (a)(2)(B), and Mejia-Rodriguez has committed
two, to reach the merits of his argument. We will also set aside
the fact that he conceded removability before the IJ and that binds
him on the merits. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th
Cir. 2006); Selimi v. INS, 312 F.3d 854, 860 (7th Cir. 2002).
The relevant portion of the petty offense exception
provides that the inadmissibility rule for an alien who committed
a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I),
shall not apply if:
The maximum penalty possible for the crime of
which the alien was convicted . . . did not
exceed imprisonment for one year and, if the
alien was convicted of such crime, the alien
was not sentenced to a term of imprisonment in
excess of 6 months . . . .
8 U.S.C. § 1182(a)(2)(A)(ii)(II). The statute itself makes no
reference to the Sentencing Guidelines. The language of the
statute plainly refers to the "maximum penalty possible" and that
maximum is set by statute. That maximum possible punishment is
for "the crime of which the alien was convicted," a reference again
to the statute of conviction. See Mendez-Mendez, 525 F.3d at 832-
35.
The fact that Mejia-Rodriguez was not actually sentenced
to confinement of less than a year is irrelevant. The statutory
-7-
language is plain and requires rejection of his argument. See
Aquino-Encarnacion v. INS, 296 F.3d 56, 57 (1st Cir. 2002) (per
curiam).
Mejia-Rodriguez's third argument is that he was eligible
for a waiver under 8 U.S.C. § 1182(h) because he has a child who is
a U.S. citizen. This newfound claim is based on a factual
assertion that was not presented to the agency. Mejia-Rodriguez
has thus failed to exhaust his administrative remedies. See Silva
v. Gonzales, 455 F.3d 26, 28-29 (1st Cir. 2006). And had any
discretionary decision been made on the facts of his case, this
would not be subject to judicial review, given the restraints of 8
U.S.C. § 1252(a)(2). See Conteh, 461 F.3d at 63-64.
The petition for review is denied.
-8-