IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2008
No. 07-60740 Charles R. Fulbruge III
Clerk
FREDERICO IBARRA DE HOYOS
Petitioner
v.
MICHAEL B MUKASEY
Respondent
Appeal from the United States Board of Immigration Appeals
Before KING, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:
In May 2000, petitioner Frederico Ibarra De Hoyos, a lawful permanent
resident, was convicted of possession of marijuana in an amount greater than 50
pounds and less than 2000 pounds, a second degree felony under the Texas
Controlled Substance Act, TEX. HEALTH & SAFETY CODE § 481.121(b)(5). In
subsequent removal proceedings, an Immigration Judge granted De Hoyos’s
application for cancellation of removal under § 240A(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(a). Four years later, De Hoyos was twice
convicted of theft in violation of Texas Penal Code § 31.03(b). In subsequent
removal proceedings, the Immigration Judge ordered De Hoyos removed and
denied his application for adjustment of status, reasoning, inter alia, that his
No. 07-60740
marijuana possession conviction remained “valid for immigration purposes.” On
August 24, 2007, the Board of Immigration Appeals affirmed the Immigration
Judge’s judgment. De Hoyos now petitions for review of the Board of
Immigration Appeals’s final removal order. For the following reasons, we deny
his petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
De Hoyos, a native and citizen of Mexico, became a lawful permanent
resident of the United States in 1993. On May 16, 2000, De Hoyos pled guilty
to and was convicted of possession of marijuana in an amount greater than 50
pounds and less than 2000 pounds, a second degree felony under the Texas
Controlled Substance Act, TEX. HEALTH & SAFETY CODE § 481.121(b)(5).
Removal proceedings were commenced against De Hoyos. On April 24, 2001, an
Immigration Judge (“IJ”) granted De Hoyos’s application for cancellation of
removal under § 240A(a) of the Immigration and Nationality Act (the “INA”), 8
U.S.C. § 1229b(a).
De Hoyos was subsequently convicted of stealing several cases of beer on
October 29, 2004 and December 10, 2004, in violation of Texas Penal Code
§ 31.03(b). On May 1, 2006, U.S. Immigration and Customs Enforcement (“ICE”)
commenced new removal proceedings. The Notice to Appear (“NTA”) charged
that De Hoyos was subject to removal based on two previous convictions for
crimes of moral turpitude not arising out of a single scheme of conduct, violating
§ 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii). De Hoyos admitted to
the theft convictions. On August 21, 2006, De Hoyos submitted an approved visa
petition in support of his application for adjustment of status. At the hearing on
this application, ICE’s counsel requested that the IJ pretermit De Hoyos’s
application, arguing that De Hoyos could not obtain a waiver under INA § 212(h)
for his May 2000 conviction for possession of marijuana despite his removal
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having been cancelled. The prior cancellation of removal, counsel argued, did
not erase the conviction.
On May 9, 2007, the IJ ordered De Hoyos removed and denied his
application for adjustment of status. The IJ found De Hoyos inadmissible under
INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (inadmissible due to a crime
involving moral turpitude), and INA § 212(a)(2)(A)(i)(II), 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) (inadmissible due to a controlled substance offense). Her
grounds for denying relief centered mostly on a rejection of De Hoyos’s claim that
cancellation of removal in 2001 precluded consideration of his 2000 conviction
in the current removal proceedings. Citing Matter of Balderas, 20 I. & N. Dec.
389 (BIA 1991), and this court’s decision in Molenda v. INS, 998 F.2d 291 (5th
Cir. 1993), the IJ stated that “the underlying conviction remains valid for
immigration purposes.” Therefore, De Hoyos was inadmissible under INA
§ 212(a)(2)(A)(i)(II) and was not entitled to adjustment of status.
On August 24, 2007, the Board of Immigration Appeals (the “BIA”)
affirmed the IJ’s judgment, reasoning primarily that De Hoyos’s previous
marijuana conviction did not “disappear” from his record, regardless of the
previous grant of cancellation of removal. De Hoyos timely filed a petition for
review of the BIA’s final removal order.
II. STANDARD OF REVIEW
This court reviews de novo the BIA’s resolution of questions of law, giving
“considerable deference to the BIA’s interpretation of the legislative scheme it
is entrusted to administer.” Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007)
(quoting Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992)). “[T]he court, as
well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Chevron U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837,
842–43 (1984). “[I]f the statute is silent or ambiguous with respect to the specific
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issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
This court reviews de novo constitutional claims presented in a petition for
review of a decision of the BIA. Danso v. Gonzales, 489 F.3d 709, 712 (5th Cir.
2007).
III. DISCUSSION
A. De Hoyos’s marijuana conviction and admissibility
Adjustment of status is a mechanism by which an alien’s status “may be
adjusted by the Attorney General, in his discretion and under such regulations
as he may prescribe, to that of an alien lawfully admitted for permanent
residence.” 8 U.S.C. § 1255(a). A prerequisite for adjustment of status is that
the applicant be “admissible to the United States for permanent residence.”1 8
U.S.C. § 1255(i)(2)(A). Before 1996, INA § 212(c) provided that “aliens lawfully
admitted for permanent residence . . . may be admitted in the discretion of the
Attorney General,” hence providing grounds for the grant of discretionary relief
for permanent residents who had committed certain crimes. See Matter of
Przygocki, 17 I. & N. Dec. 361, 362–63 (BIA 1980). When Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the
“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended in
scattered sections of 8 U.S.C.), § 240A(a) replaced § 212(c) as the key provision
1
8 U.S.C. § 1255(i)(2) states in full:
(2) Upon receipt of such an application and the sum hereby required, the
Attorney General may adjust the status of the alien to that of an alien lawfully
admitted for permanent residence if—
(A) the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the
application is filed.
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governing discretionary relief to aliens who have not been convicted of an
aggravated felony. It states:
The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States if the
alien—
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years
after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a). The plain language suggests that the Attorney General
cancels removal itself, not the underlying conviction. Furthermore, we note that
there is no language that addresses the impact of a prior conviction and removal
proceeding on a future removal proceeding. Hence, the plain language is
sufficiently unambiguous to conclude that De Hoyos’s conviction may still be a
factor that relates to admissibility when determining his application for
adjustment of status.
The BIA correctly chose to be guided by the principles of its § 212(c)
jurisprudence, a jurisprudence with which we have agreed in the past. Balderas
states that INA § 212(c) relief does not affect the underlying conviction. 20 I. &
N. Dec. at 391. In that case, Balderas was initially charged with deportability
for having been convicted of two crimes involving moral turpitude (petty theft
and being an accessory to a felony), though the deportation proceeding was
terminated by a grant of relief under INA § 212(c). Id. at 390–91. When
Balderas later committed another petty theft offense, the Immigration and
Naturalization Service (the “INS”) again charged him with deportability for
having committed two crimes involving moral turpitude, only this time the new
petty theft conviction was combined with the old conviction of being accessory
to a felony. Id. The BIA held that the IJ could use his previous conviction of
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No. 07-60740
being accessory to a felony in this new proceeding despite the previous grant of
relief under § 212(c):
[W]hen section 212(c) relief is granted, the Attorney General does
not issue a pardon or expungement of the conviction itself. Instead,
the Attorney General grants the alien relief upon a determination
that a favorable exercise of discretion is warranted on the particular
facts presented, notwithstanding the alien’s excludability or
deportability. Therefore, since a grant of section 212(c) relief
“waives” the finding of excludability or deportability rather than the
basis of the excludability itself, the crimes alleged to be grounds for
excludability or deportability do not disappear from the alien’s
record for immigration purposes.
Id. at 391 (footnotes omitted). This court has agreed with this interpretation.
First, in Molenda, we stated that:
Balderas held that when section 212(c) relief is granted, the
Attorney General does not issue a pardon or expungement of the
conviction itself. The grant of a section 212(c) relief merely waives
the finding of deportability rather than the basis of the deportability
itself. Therefore, the crimes alleged to be grounds for deportability
do not disappear from the alien’s record for immigration purposes.
998 F.2d at 294 (citations omitted). Second, in Amouzadeh v. Winfrey, we
approved of both Balderas and Molenda:
A waiver under section 212(c) does not remove an aggravated
felony conviction from an alien’s record. The conviction still exists
for purposes of section 240A(a) . . . . This court approved [of
Balderas] in Molenda v. INS. Amouzadeh’s aggravated felony
conviction precludes cancellation of removal under section 240A(a).
467 F.3d 451, 458–59 (5th Cir. 2006) (citations omitted). Thus, a conviction that
was the focus of a previous waiver under § 212(c) may still be a grounds of
inadmissibility that statutorily precludes an alien’s acquisition of § 212(h) relief
in further removal proceedings. Furthermore, we agree with the IJ that
“[a]lthough the Balderas decision applied to the predecessor of § 240A (former
§ 212(c)), the Board’s rationale applies with equal force to the effect of
cancellation of removal on an underlying conviction.”
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We thus deny De Hoyos’s petition for review of the BIA’s removal order on
this ground.
B. De Hoyos’s alleged deprivation of equal protection under the law
De Hoyos argues that he has been treated differently than other similarly
situated legal permanent residents who have been granted cancellation of
removal and are subject to admissibility criteria upon return after travel abroad.
The only case that De Hoyos cites in support of this argument is Francis v. INS,
532 F.2d 268 (2d Cir. 1976), in which the Second Circuit found no rational basis
for the availability of § 212(c) relief in exclusion proceedings against aliens
attempting to enter the United States and not in deportation proceedings against
aliens present in the United States. This court, however, has stated that there
is no equal protection violation when a justification for differential limits on
§ 212(c) relief is not so “tenuous.” See Requena-Rodriguez v. Pasquarell, 190
F.3d 299, 309 (5th Cir. 1999). In Requena-Rodriguez v. Pasquarell, this court
found that limits under the Antiterrorism and Effective Death Penalty Act on
§ 212(c) relief, 8 U.S.C. § 1105a(d) (repealed 1996), did not violate petitioner’s
right to equal protection when there was a rational basis for distinguishing
between aliens being deported and those being excluded. Id. Citing LaGuerre
v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998), this court stated that the “more
lenient treatment of excludable as distinct from deportable aliens” stemmed
from a Congressional desire to create an “incentive for deportable aliens to leave
the country . . . without their having to be ordered to leave at the government’s
expense.” Requena-Rodriguez, 190 F.3d at 309.
Furthermore, this court has found that aliens generally do not have a
liberty interest in discretionary immigration relief. See Assaad v. Ashcroft, 378
F.3d 471, 475 (5th Cir. 2004) (“Assaad’s motion to reopen does not allege a
violation of his Fifth Amendment right to due process because the failure to
receive relief that is purely discretionary in nature does not amount to a
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No. 07-60740
deprivation of a liberty interest.” (internal quotation marks omitted)); Finlay v.
INS, 210 F.3d 556, 557–58 (5th Cir. 2000) (“[T]he denial of discretionary relief
does not rise to the level of a constitutional violation, even if [an alien] had been
eligible for it.”). Adjustment of status is clearly discretionary, as INA § 245
states that the Attorney General may adjust an alien’s status “in his discretion
and under such regulations as he may prescribe.” 8 U.S.C. § 1255(a); see also
Flores-Ledezma v. Gonzales, 415 F.3d 375, 379 (5th Cir. 2005) (“The Attorney
General has discretion to determine under which set of procedures the removal
order is issued.”).
Finally, though the existence of a liberty interest is not a “threshold
inquiry” in an equal protection analysis, we need not even determine whether
a liberty interest exists when we find “a rational basis for any distinction.”
Requena-Rodriguez, 190 F.3d at 309 n.34. In this case, a hypothetical alien who
enters the country as a lawful permanent resident would still be subject to the
commencement of removal proceedings for any deportable offense. 8 U.S.C.
§ 1227(a)(1)(B) (“Any alien who is present in the United States in violation of
this chapter or any other law of the United States . . . is deportable.”). In
essence, a conviction would remain viable as a disqualifying ground of
inadmissibility when the hypothetical alien applies for adjustment of status
during the course of new removal proceedings against him. We thus reject De
Hoyos’s equal protection claim.
IV. CONCLUSION
For the foregoing reasons, we DENY De Hoyos’s petition for review.
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