United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-60653
Summary Calendar
JAVIER MORENO-ALVARADO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 533 640
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Mexican citizen Javier Moreno-Alvarado (Moreno) petitions
for review of the decision of the Board of Immigration Appeals
directing his removal and denying his application for adjustment of
status. Moreno contends that the Immigration Judge (IJ) erred when
he determined that the exception from counting time spent in the
United States for minors contained in 8 U.S.C.
§ 1182(a)(9)(B)(iii)(I) was inapplicable to § 1182(a)(9)(C), the
subsection governing his case, and that the IJ’s interpretation of
the relevant statutory sections violated the Equal Protection
*
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opinion should not be published and is not precedent except under the limited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.
Clause.
The plain meaning of the language of § 1182(a)(9)(B)(iii)(I)
limits its application to § 1182(a)(9)(B)(i). See United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989). Section
1182(a)(9)(C) has an exceptions provision, and it does not include
any exception for minors. See § 1182(a)(9)(C)(ii). Additionally,
“expressio unius est exclusio alterius–-‘the expression of one
thing implies the exclusion of another.’” See Thompson v.
Goetzmann, 337 F.3d 489, 499 (5th Cir. 2003).
Moreover, we have distinguished § 1182(a)(9)(B) and
§ 1182(a)(9)(C), noting that § 1182(a)(9)(C) applies to more
culpable conduct than does the other provision. Mortera-Cruz v.
Gonzales, 409 F.3d 246, 255-56 (5th Cir.), cert. denied, 126 S. Ct.
733 (2005). Additionally, the Ninth Circuit has determined that,
although the phrase “unlawful presence” has the same general
meaning in both subsections, it would not “automatically presume
that the waiver provisions are also incorporated, particularly
where they are contained in separate provisions and not within the
definition itself.” Acosta v. Gonzales, 439 F.3d 550, 557 (9th
Cir. 2006).
Finally, the distinction that we noted in Mortera-Cruz
provides a legitimate governmental interest in limiting the
exceptions relevant to § 1182(a)(9)(C). Moreno thus has failed to
show a violation of the Equal Protection Clause.
2
PETITION DENIED.
3