Mejia v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JORGE MEJIA, 
Petitioner, No. 04-74001
v.
 Agency No.
A76-613-262
ALBERTO R. GONZALES, Attorney
General,
Respondent.


JORGE MEJIA, 
Petitioner, No. 04-76214
v.
 Agency No.
A76-613-262
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 10, 2007—Pasadena, California

Filed August 24, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and Ronald M. Whyte,* District Judge.

Opinion by Judge McKeown

*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.

10491
10494 MEJIA v. GONZALES

COUNSEL

Raul E. Godinez, Law Office of Raul E. Godinez, Los Ange-
les, California, for the petitioner.

Peter Keisler, Assistant Attorney General, Department of Jus-
tice, Washington, DC; and Francesco Isgro and Papu Sandu,
Office of Immigration Litigation, Department of Justice,
Washington, DC, for the respondent.

OPINION

McKEOWN, Circuit Judge:

In late 2002, the Attorney General promulgated a rule
designed to guide Immigration Judges (“IJs”) in deciding
whether to grant waivers of inadmissibility to the United
States based on certain criminal grounds. The regulation pro-
vides that in cases where individuals have committed “violent
or dangerous crimes,” the Attorney General will not exercise
his discretion to grant waivers under 8 U.S.C. § 1182(h)
(known as § 212(h) relief) unless the individual can show “ex-
ceptional and extremely unusual hardship.” 8 C.F.R.
§ 212.7(d).

In this appeal we consider, among other issues, Jorge Hum-
berto Mejia’s (“Mejia”) challenge to the application of this
regulation to his removal proceedings. We hold that adoption
of 8 C.F.R. § 212.7(d) is a permissible exercise of the Attor-
ney General’s authority and the regulation may be applied to
convictions that became final before the effective date of the
regulation.
 MEJIA v. GONZALES 10495
BACKGROUND

Mejia, a native and citizen of El Salvador, entered the
United States without inspection in the early 1980s. In 1988,
he married Angela Mejia, a United States citizen, and together
they have three daughters, two of whom are U.S. citizens.
Angela Mejia also has a daughter from a previous relation-
ship, Gloria.

In 1989, Mejia was convicted of violating provisions of the
California Penal Code that prohibit child molestation and
commission of lewd and lascivious acts upon a child. See Cal.
Penal Code § 288(a), (c). These convictions were based on
Mejia’s repeated molestation of his step-daughter, Gloria,
beginning when Gloria was twelve years old and continuing
for approximately three and a half years. This conduct
included slapping her, massaging her breasts, and fondling her
genitals. Mejia pleaded guilty and served seven months in jail.

In August 2000, the Immigration and Naturalization Ser-
vice (“INS”) served Mejia with a Notice to Appear, charging
him as removable in violation of 8 U.S.C. § 1182(a)(2)(A)
(i)(I)1 and 8 U.S.C. § 1182(a)(6)(A)(i).2 At his initial hearing,
before the IJ, Mejia conceded removability and asked for time
to apply for an adjustment of status and a waiver of inadmissi-
bility under Immigration and Nationality Act (“INA”)
§ 212(h), 8 U.S.C. § 1182(h).3
1
8 U.S.C. § 1182(a)(2)(A)(i) states that “[e]xcept as provided in clause
(ii), any alien convicted of, or who admits having committed acts which
constitute the essential elements of — (I) a crime involving moral turpi-
tude (other than a purely political offense) or an attempt or conspiracy to
commit such a crime . . . is inadmissible.”
2
8 U.S.C. § 1182(a)(6)(A)(i) states that “[a]n alien present in the United
States without being admitted or paroled, or who arrives in the United
States at any time or place other than as designated by the Attorney Gen-
eral, is inadmissible.”
3
8 U.S.C. § 1182(h) states in part that “[t]he Attorney General may, in
his discretion, waive the application of subparagraph[ ](A)(i)(I) . . . of sub-
10496 MEJIA v. GONZALES
In April 2003, the IJ conducted a hearing on Mejia’s
§ 212(h) application. The IJ heard testimony from Mejia, his
brother, his wife, and two of his daughters, but not from his
stepdaughter Gloria, who declined to appear. The IJ denied
Mejia’s petition for a § 212(h) waiver on the merits. In deny-
ing relief, the IJ held that the standard set forth in Matter of
Jean, 23 I. & N. Dec. 373 (BIA 2002), and later codified at
8 C.F.R. § 212.7(d), governed Mejia’s application.4 Section
212.7(d) states that, in general, the Attorney General will not
exercise his discretion to grant a § 212(h) waiver in a case
involving a “violent or dangerous crime[ ]” unless the appli-
cant shows “exceptional and extremely unusual hardship.” 8
C.F.R. § 212.7(d). Applying this standard, the IJ held that
Mejia failed to meet the high burden of exceptional and
extremely unusual hardship. The IJ acknowledged that this
was a “very difficult” case but concluded that denial was
appropriate because “the seriousness of the crime, even
though he has demonstrated rehabilitation, is just virtually
inexcusable.” The IJ also noted other factors that weighed
against waiver, including the circumstances of the crime,
Mejia’s denial of the events when confronted, and the fact
that Gloria did not testify on his behalf.

The BIA adopted and affirmed the IJ’s decision, citing
Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). The BIA
also observed that all of Mejia’s convictions “constitute[d]
crimes of violence,” and held that Mejia failed to show excep-
tional or extremely unusual hardship.

section (a)(2) of this section . . . if . . . in the case of an immigrant who
is the spouse, parent, son, or daughter of a citizen of the United States or
an alien lawfully admitted for permanent residence . . . it is established to
the satisfaction of the Attorney General that the alien’s denial of admis-
sion would result in extreme hardship to the United States citizen or law-
fully resident spouse, parent, son, or daughter of such alien . . . .”
4
The regulation also appears at 8 C.F.R. § 1212.7(d). Because the Fed-
eral Register refers to § 212.7(d), we use that reference throughout. See
Waiver of Criminal Grounds of Inadmissibility for Immigrants, 67 Fed.
Reg. 78,675-01 (Dec. 26, 2002).
 MEJIA v. GONZALES 10497
Mejia filed a timely motion to reopen with the BIA, which
was denied. Mejia petitions for review of both the denial of
§ 212(h) relief and his motion to reopen.5

ANALYSIS

I. ATTORNEY GENERAL’S AUTHORITY TO PROMULGATE 8
C.F.R. § 212.7(d)

[1] The first question we consider is whether the Attorney
General exceeded his statutory authority in adopting 8 C.F.R.
§ 212.7(d), the regulation that establishes a heightened burden
under § 212(h) for individuals who have committed violent or
dangerous crimes. Section 212(h)(1) states that the Attorney
General may, “in his discretion” waive the inadmissibility of
certain criminal aliens if “it is established to the satisfaction
of the Attorney General that the alien’s denial of admission
would result in extreme hardship to the United States citizen
or lawfully resident spouse, parent, son, or daughter of such
alien.” 8 U.S.C. § 1182(h)(1)(B). This waiver may be granted
if “the Attorney General, in his discretion, and pursuant to
such terms, conditions and procedures as he may by regula-
tions prescribe, has consented to the alien’s applying or reap-
plying for a visa, for admission to the United States, or
adjustment of status.” Id. § 1182(h)(2).

[2] In 2003, the Attorney General adopted 8 C.F.R.
§ 212.7(d), which states:

The Attorney General, in general, will not favorably
exercise discretion under section 212(h)(2) of the
5
In his brief on appeal, Mejia does not discuss the arguments in his
appeal to the BIA as distinct from those in his motion to reopen. To the
extent that those issues overlap, we discuss them below. To the extent that
the motion to reopen discusses separate issues, any challenge to those
issues is waived. See Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir.
2001).
10498 MEJIA v. GONZALES
[Immigration and Nationality] Act (8 U.S.C.
§ 1182(h)(2)) to consent to an application or reappli-
cation for a visa, or admission to the United States,
or adjustment of status, with respect to immigrant
aliens who are inadmissible under section 212(a)(2)
of the [Immigration and Nationality] Act in cases
involving violent or dangerous crimes, except in
extraordinary circumstances, such as . . . cases in
which an alien clearly demonstrates that the denial of
[relief] would result in exceptional and extremely
unusual hardship. Moreover, depending on the grav-
ity of the alien’s underlying criminal offense, a
showing of extraordinary circumstances might still
be insufficient to warrant a favorable exercise of dis-
cretion under section 212(h)(2) of the Act.

In issuing the regulation, the Attorney General emphasized
that “8 C.F.R. § 212.7(d) governs only the exercise of discre-
tion under section 212(h)(2) of the Act, after the alien has met
the threshold requirement of section 212(h)(1) of the Act.” 67
Fed. Reg. at 78,677.

Mejia argues that there is a disconnect between the lan-
guage of the statute—“extreme hardship”—and the burden
imposed by the regulation—an “exceptional and extremely
unusual” hardship. His suggestion that the regulation exceeds
the bounds of the Attorney General’s authority misconceives
the statute as a whole and the discretion Congress has
entrusted to the Attorney General in this arena.

We apply the “familiar Chevron two-step approach” to
determine whether 8 C.F.R. § 212.7(d) is valid. See Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 489 (9th Cir. 2007) (en
banc) (applying Chevron U.S.A. v. Natural Res. Def. Council,
467 U.S. 837 (1984), to determine whether an immigration
regulation was ultra vires). In the first step of the Chevron
inquiry, we ask “whether Congress has directly spoken to the
precise question at issue,” Chevron, 467 U.S. at 842—here,
 MEJIA v. GONZALES 10499
whether Congress has established the standard that the Attor-
ney General may use in exercising his discretion to grant
§ 212(h) relief. In fact, Congress has not spoken on this issue
as the statute does not address any standard for exercise of his
discretion under § 212(h)(2).

Therefore, we assess “whether the agency’s [regulation] is
based on a permissible construction of the statute.” Chevron,
467 U.S. at 843; see also Morales-Izquierdo, 486 F.3d at 492.
“[T]he agency construction [need not be] the only one it per-
missibly could have adopted . . . , or even the reading the
court would have reached if the question initially had arisen
in a judicial proceeding.” Chevron, 467 U.S. at 843 n.11.

The regulation speaks only to the exercise of discretion
under § 212(h)(2), not to the threshold determination of eligi-
bility under § 212(h)(1). The Attorney General has not
changed or altered the statutory “extreme hardship” standard.
Instead, he has promulgated a regulation to guide IJs in the
way they exercise their relatively unfettered grant of discre-
tion after the statutory requirements are met. Cf. 8 U.S.C.
§ 1252(a)(2)(B)(i) (insulating from judicial review discretion-
ary determinations under 8 U.S.C. § 1182(h)).

[3] The regulation does not alter or supercede the “extreme
hardship” standard. Rather, the regulation supplements and
gives definition to the standard to be applied in the cases of
individuals who have committed violent or dangerous crimes.
The Attorney General, in the exercise of his discretion, sug-
gests that the equities disfavor, although do not preclude,
relief in this circumstance. Given Congress’s broad grant of
discretion, this approach is not inconsistent with the statute or
the Attorney General’s authority.

As we noted in Ayala-Chavez v. INS, “[C]ourts have
always interpreted broadly the discretionary authority of the
Attorney General to grant or deny waiver of deportation. . . .
Inherent in this discretion is the authority of the Attorney
10500 MEJIA v. GONZALES
General and his subordinates to establish general standards
that govern the exercise of such discretion, as long as these
standards are rationally related to the statutory scheme.” 944
F.2d 638, 641 (9th Cir. 1991). In that case, we held that where
Congress had not specified any standards with respect to the
discretionary determination of eligibility for relief under for-
mer INA § 212(c), the Attorney General did not exceed his
statutory authority by requiring a showing of “outstanding
equities” from those individuals who had been convicted of
serious drug offenses. See id.

[4] The heightened standard is rationally related to the
national immigration policy of not admitting aliens who could
be a danger to society. Our sister circuits are in accord. See
Ali v. Achim, 468 F.3d 462, 466-67 (7th Cir. 2006) (affirming
the BIA’s use of the §212.7(d) standard before it was formally
codified); Jean v. Gonzales, 452 F.3d 392, 396-98 (5th Cir.
2006) (same); compare Succar v. Ashcroft, 394 F.3d 8 (1st
Cir. 2005) (holding, under a different section of the INA, that
categorically eliminating a certain type of relief exceeds the
Attorney General’s discretion). The regulation, which neither
precludes relief for the class of aliens who commit violent
crimes nor instructs the IJ to ignore the statutory consider-
ations, is within the Attorney General’s authority.

II. RETROACTIVE APPLICATION OF 8 C.F.R. § 212.7(d)

Mejia, whose convictions were entered long before the reg-
ulation was enacted, next contends that the BIA violated con-
stitutional prohibitions on retroactivity by applying 8 C.F.R.
§ 212.7(d) to him. As a preliminary matter, we reject the gov-
ernment’s claim that Mejia waived this argument by failing to
exhaust his administrative remedies. Although ordinarily we
do not hear an argument raised for the first time in a petition
for review, we excuse the lack of exhaustion where a peti-
tioner raises a challenge to the constitutionality of the statutes
and regulations the BIA administers. See Padilla-Padilla v.
Gonzales, 463 F.3d 972, 976-77 (9th Cir. 2006); see also
 MEJIA v. GONZALES 10501
Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.
2005) (applying this principle to a retroactivity challenge).

[5] Turning to the merits, we hold that § 212.7(d) may be
applied retroactively. Determining whether a regulation or
statute may be applied retroactively requires a two-step analy-
sis under Landgraf v. USI Film Products, 511 U.S. 244
(1994). First, we determine whether the statute or regulation
clearly expresses that the law is to be applied retroactively, id.
at 280, which is not the case here. The regulation makes no
mention of the timing of the convictions it affects. See 8
C.F.R. § 212.7(d).

[6] In the absence of clear direction, we must consider
whether application of the regulation would have a retroactive
effect. Landgraf, 511 U.S. at 280. “The inquiry into whether
a statute [or regulation] operates retroactively demands a
commonsense, functional judgment about whether the new
provision attaches new legal consequences to events com-
pleted before its enactment.” I.N.S. v. St. Cyr, 533 U.S. 289,
321 (2001) (internal quotations omitted). A regulation has
retroactive effect “when it takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect
to transactions or considerations already past.” See id. (inter-
nal quotations omitted). A judgment bearing on retroactivity
should be guided by “fair notice, reasonable reliance, and set-
tled expectations.” Id. (internal quotations omitted).

Relying principally on St. Cyr, Mejia argues that the regu-
lation “attaches a new disability, in respect to transactions or
considerations already past.” See id. (internal quotations omit-
ted). St. Cyr addressed an individual’s continuing eligibility
for relief under former INA § 212(c). The Supreme Court
held that the INS could not retroactively apply the repeal of
§ 212(c) to individuals whose plea-based convictions were
entered before Congress enacted the Illegal Immigration
10502 MEJIA v. GONZALES
Reform and Immigrant Responsibility Act (“IIRIRA”). Id. at
321. The Court reasoned that

IIRIRA’s elimination of any possibility of § 212(c)
relief for people who entered into plea agreements
with the expectation that they would be eligible for
such relief clearly attaches a new disability, in
respect to transactions or considerations already past.
. . . There can be little doubt that, as a general matter,
alien defendants . . . are acutely aware of the immi-
gration consequences of their convictions. . . . Given
the frequency with which § 212(c) relief was granted
in the years leading up to [the Anti-Terrorism and
Effective Death Penalty Act] and IIRIRA, preserving
the possibility of such relief would have been one of
the principal benefits sought by defendants deciding
whether to accept a plea offer or instead to proceed
to trial.

Id. at 321-23 (internal quotations and citations omitted).

[7] Mejia argues that like St. Cyr, he pleaded guilty to his
offenses with the expectation that the standard for § 212(h)
relief would be “extreme hardship,” rather than “exceptional
and extremely unusual hardship.” He analogizes to St. Cyr’s
expectation that § 212(c) relief would be available. The ques-
tion, then, is whether the Attorney General’s articulation of an
enhanced standard “attaches a new disability” to Mejia’s con-
viction. See id. at 321.

[8] Although Mejia’s argument has some analytical appeal,
his situation differs from St. Cyr’s in one significant way: In
St. Cyr, the repeal of the statute deprived would-be immi-
grants from seeking any relief under the statute. Id. Here, the
challenged regulation does not completely foreclose the possi-
bility of relief as did the repeal of § 212(c) in St. Cyr. Both
before and after the adoption of § 212.7(d), Mejia had the
ability to seek relief under INA § 212(h). Before and after the
 MEJIA v. GONZALES 10503
regulation took effect, Mejia would have been subject to the
Attorney General’s discretion, provided that he met the
threshold statutory requirements at INA § 212(h)(1). And,
both before and after the regulation took effect, we may pre-
sume Mejia knew that the IJ would weigh the equities of his
case and make a decision. As the Supreme Court observed in
St. Cyr, “[t]here is a clear difference, for the purposes of retro-
activity analysis, between facing possible deportation and fac-
ing certain deportation.” Id. at 325. Both before and after the
adoption of the regulation, Mejia faced only possible deporta-
tion.

[9] Nor could Mejia reasonably rely on the “extreme hard-
ship” standard applying to the discretionary (rather than statu-
tory eligibility) aspect of the Attorney General’s analysis
because Congress never suggested that the “extreme hard-
ship” standard applied to the Attorney General’s exercise of
discretion. Applying the regulatory “exceptional and
extremely unusual” standard to Mejia does not have an imper-
missibly retroactive effect because it neither attaches a new
disability to past conduct nor upsets settled expectations.

III. MEJIA’S REMAINING CLAIMS

We briefly address Mejia’s remaining claims. Mejia first
contends that the BIA erred in using the term “crimes of vio-
lence” rather than the statutory standard “violent and danger-
ous” crime, and that, in any event, he did not commit a crime
of violence. The government responds that we lack jurisdic-
tion over this challenge. We disagree with both parties’ argu-
ments.

Looking first at the government’s argument, the jurisdic-
tional statute cited by the government, 8 U.S.C. § 1252(a)(2)
(B)(i), is just a starting point for our jurisdictional analysis.
That statute provides that “no court shall have jurisdiction to
review . . . any judgment regarding the granting of relief
under section 1182(h) . . . .” 8 U.S.C. § 1252(a)(2)(B)(i).
10504 MEJIA v. GONZALES
Despite the categorical language of § 1252(a)(2)(B)(i), a sepa-
rate subsection, § 1252(a)(2)(D), provides that “[n]othing in
subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a peti-
tion for review filed with an appropriate court of appeals in
accordance with this section.” 8 U.S.C. § 1252(a)(2)(D).

The government argues that § 1252(a)(2)(B)(i)’s prohibi-
tion on judicial review extends to the determination that
Mejia’s crimes are violent or dangerous, but this contention
misconceives Mejia’s claim. Mejia contends specifically that
the BIA and the IJ used an erroneous legal standard in their
analysis. This is a legal question over which we retain juris-
diction. 8 U.S.C. § 1252(a)(2)(D).

[10] Turning to Mejia’s underlying claim, we hold that it
lacks merit—the BIA specifically found that “the respon-
dent’s crimes are both violent and dangerous.” The BIA’s
passing references to “crimes of violence” are not inconsistent
with the statutory standard. To the extent Mejia also argues
that his convictions under California Penal Code § 288(a) are
not crimes of violence, that argument is foreclosed by Ninth
Circuit precedent. See United States v. Teeples, 432 F.3d
1110, 1111 (9th Cir. 2006) (holding that a violation of
§ 288(a) is a crime of violence under United States Sentenc-
ing Guidelines § 4B1.1(a)); United States v. Medina-Maella,
351 F.3d 944, 946-47 (9th Cir. 2003) (holding that a violation
of § 288(a) is a crime of violence under United States Sen-
tencing Guidelines § 2L1.2(b)(1)).

We do not have jurisdiction to review the last two issues
raised by Mejia. Mejia argues that if the BIA had considered
Matter of Jean, 23 I. & N. Dec. 373, it would have concluded
that his case was not factually similar enough to that case to
warrant denial of relief. Lastly, Mejia challenges the BIA’s
failure to consider his extensive rehabilitation when it denied
 MEJIA v. GONZALES 10505
his § 212(h) application. As noted, § 1252(a)(2)(B)(i) pre-
cludes us from reviewing the BIA’s decision under § 212(h),
unless the petition raises a cognizable legal or constitutional
question concerning that determination. See Fernandez v.
Gonzales, 439 F.3d 592, 596 (9th Cir. 2006). Both of these
claims fall well within the BIA’s discretionary authority and
are not subject to our review. See 8 U.S.C. § 1252(a)(2)(B)(i).

PETITIONS DENIED.