UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2427
MOHAMMED TOUMI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 29, 2011 Decided: August 24, 2011
Before KING, DAVIS, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jason A. Dzubow, DZUBOW, SARAPU & PILCHER, PLLC, Washington,
D.C., for Petitioner. Tony West, Assistant Attorney General,
Linda S. Wernery, Assistant Director, Gregory M. Kelch, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammed Toumi, a native and citizen of Morocco,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order finding he was removable for having been convicted
of a crime of moral turpitude, see Immigration and Nationality
Act (“INA”) § 237(a)(2)(A)(i); 8 U.S.C. § 1227(a)(2)(A)(i)
(2006), and not eligible for a waiver of inadmissibility under
INA § 212(h), 8 U.S.C. § 1182(h) (2006).
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
lacks jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien convicted of certain enumerated crimes, including a
crime of moral turpitude. Under § 1252(a)(2)(C), this court
retains jurisdiction to review factual determinations such as
whether Toumi is an alien and whether he has been convicted of a
crime of moral turpitude. Ramtulla v. Ashcroft, 301 F.3d 202,
203 (4th Cir. 2002). If the court is able to confirm these two
factual determinations, then, under 8 U.S.C. § 1252(a)(2)(C),
(D), the Court can only consider “constitutional claims or
questions of law.” See Mbea v. Gonzales, 482 F.3d 276, 278 n.1
(4th Cir. 2007) (internal quotation marks omitted).
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While Toumi does not challenge the finding that he is
an alien removable for having been convicted of a crime of moral
turpitude, he claims that 8 U.S.C. § 1182(h) violates his and
his family’s right to equal protection under the Fifth
Amendment.
Judicial review over federal immigration legislation
is limited. Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2000).
The power to expel or exclude aliens is a “fundamental sovereign
attribute exercised by the Government’s political departments
largely immune from judicial control.” Shaughnessy v. Mezei,
345 U.S. 206, 210 (1953). “[A] statutory classification that
neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.”
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
Under rational basis review, a statute will be upheld if there
is a rational relationship between the alleged disparity and
some legitimate government purpose. Adkins v. Rumsfeld, 464
F.3d 456, 469 (4th Cir. 2006). Rational basis review does not
require the court to identify Congress’ actual rationale for the
distinction. The statute will be upheld if “there are plausible
reasons for Congress’ action.” United States R.R. Ret. Bd. v.
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Fritz, 449 U.S. 166, 179 (1980). The burden is on the one
raising the equal protection challenge to negate “every
conceivable basis which might support it[.]” Heller v. Doe, 509
U.S. 312, 320 (1993) (internal quotation marks omitted).
INA § 212(h), 8 U.S.C. § 1182(h), provides for a
waiver of inadmissibility for certain aliens if it is found that
the alien’s removal will be an extreme hardship to the United
States citizen or lawfully resident family member. The waiver
is appropriate if the Attorney General has consented to the
alien applying or reapplying for a visa, for admission to the
United States or for adjustment of status. 8 U.S.C.
§ 1182(h)(2). Under the statute, a lawful permanent resident
(“LPR”), like Toumi, is not eligible for the waiver if he cannot
establish seven years continuous residency prior to the
commencement of the removal proceedings. In addition, under 8
C.F.R. § 1245.1(f) (2011), “an alien in the United States” must
file an application for adjustment of status in order to be
considered for the § 212(h) waiver.
Because Toumi could not establish seven years
continuous residency prior to the commencement of the removal
proceedings, he was found not eligible for the INA § 212(h)
waiver. Toumi notes that criminal non-LPRs are not statutorily
obligated to show seven years continuous residency prior to
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being considered for the waiver. He contends that the
distinction between LPRs and non-LPRs violates his and his
family’s right to equal protection under the law.
This court has already rejected a similar equal
protection challenge to § 1182(h). See Ramtulla, 301 F.3d at
203-04. Similarly, every circuit court to have considered this
issue has rejected the equal protection challenge. See, e.g.,
Lukowski v. INS, 279 F.3d 644, 647-48 (8th Cir. 2002); Moore v.
Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001); Lara-Ruiz v.
INS, 241 F.3d 934, 946-48 (7th Cir. 2001). Those cases cite
several reasons for finding a rational basis supporting the
distinction at issue. Toumi’s attempts to negate those reasons
are without merit.
Because Toumi was statutorily not eligible for the INA
§ 212(h) waiver and he failed to show that the distinction
between LPRs and non-LPRs violates his right to equal
protection, we deny the petition for review. We also conclude
that his claim that his family’s right to equal protection was
also violated is without merit. See Gallanosa v. United States,
785 F.2d 116, 120 (4th Cir. 1986). * We dispense with oral
*
In light of the fact that Toumi is not statutorily
eligible for the INA § 212(h) waiver, and that his equal
protection challenge is unsuccessful in this regard, we decline
to reach his other equal protection argument because the
(Continued)
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argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
PETITION DENIED
resolution of that argument will have no bearing on his
eligibility for the waiver.
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