[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-17126 AUGUST 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A70-409-071
NUAROLD ROBENSKY CAMACHO-SALINAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 21, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Nuarold Robensky Camacho-Salinas appeals the decision of the Board of
Immigration Appeals (“BIA”) affirming the decision of the immigration judge
(“IJ”) and denying his petition for withholding of removal and for waiver of
inadmissability under INA § 212(h), 8 U.S.C. § 1182(h). After review, we dismiss
the petition in part and deny the petition in part.
I. BACKGROUND
Camacho-Salinas, a citizen and native of Nicaragua, illegally entered the
United States in 1990 when he was four years old. In October 2000, he adjusted
his status to that of lawful permanent resident (“LPR”) pursuant to the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100, § 202, 111
Stat. 2160, 2193 (1998).
In December 2004 at age nineteen, Camacho-Salinas was convicted in
Florida state court of burglary, grand theft, and strongarm robbery. In February
2005, the Department of Homeland Security (“DHS”) served Camacho-Salinas
with a Notice to Appear, charging him with removability under Immigration and
Nationality Act (“INA”) § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) because
he had been convicted of two crimes involving moral turpitude. At the time the
removal proceedings began, Camacho-Salinas had lawfully resided in the United
States for a little over five years (October 2000 to February 2005).
2
Camacho-Salinas filed an application for asylum, withholding of removal,
and relief under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. He also requested a waiver of inadmissibility
under INA § 212(h), 8 U.S.C. § 1182(h) and filed an application for waiver of
grounds of excludability under INA § 212(a)(2)(A)(i)(I), 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), in which he admitted to his convictions of moral turpitude
and requested relief from excludability. As detailed later, Camacho-Salinas is
eligible for a § 212(h) waiver of his convictions involving moral turpitude, which
would normally render him inadmissible, only if he has lawfully resided in the
United States for seven years preceding the initiation of removal proceedings.
See INA § 212(h), 8 U.S.C. § 1182(h).
At a hearing on his applications, Camacho-Salinas, who was then nineteen
years old, testified that (1) he feared returning to Nicaragua because his
grandfather, a member of the Somosa party, was killed by Sandinista guerillas in
1979, and he believed his grandfather’s political opinion would be imputed to him;
and (2) although he had recently returned to Nicaragua, with court permission, to
visit his sick grandmother (his only remaining relative in Nicaragua), he did not
know the country well or speak Spanish. Camacho-Salinas then argued that he
would be eligible for an INA § 212(h) waiver if he were an illegal alien rather than
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an LPR and that the seven-year residency requirement for § 212(h) eligibility for
LPRs was a denial of his equal protection rights.
The IJ denied Camacho-Salinas’s applications and ordered him removed to
Nicaragua. The IJ found that Camacho-Salinas was ineligible for an INA § 212(h)
waiver of inadmissibility because his legal residence commenced in 2000 and did
not continue for the required seven years prior to the initiation of the removal
proceedings in February 2005. The IJ also found that Camacho-Salinas’s
convictions made him stautorily ineligible for asylum or withholding of removal.
The IJ further found that even if Camacho-Salinas was statutorily eligible for
withholding of removal, he did not show a well-founded fear of future persecution
based on a protected ground. The IJ denied relief under the Convention Against
Torture because Camacho-Salinas never alleged torture.
On appeal to the BIA, Camacho-Salinas argued the merits of his application
for withholding of removal without addressing his statutory ineligibility for
withholding due to his convictions. He also argued that the denial of a waiver of
inadmissibility under INA § 212(h) violated his Fifth Amendment equal protection
rights.
The BIA affirmed the IJ’s decision, finding that Camacho-Salinas failed to
establish eligibility for a waiver of inadmissibility under INA § 212(h) because he
had not been an LPR for seven years prior to the initiation of removal proceedings.
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The BIA also declined to consider Camacho-Salinas’s equal protection argument,
but noted that the argument was meritless under Moore v. Ashcroft, 251 F.3d 919,
926 (11th Cir. 2001). The BIA declined to consider the merits of Camacho-
Salinas’s withholding of removal claim because he failed to challenge the IJ’s
conclusion that he was statutorily ineligible for relief. Camacho-Salinas then filed
a timely petition for review.
II. DISCUSSION
A. Jurisdiction
We first must determine whether we have jurisdiction to entertain
Camacho-Salinas’s petition. Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th Cir.
2001). Section 242(a)(2)(C) of the INA provides that this Court has no jurisdiction
to review the final order of removal if Camacho-Salinas is removable by reason of
having committed a crime involving moral turpitude for which a sentence of one
year or longer may be imposed. 8 U.S.C. § 1252(a)(2)(C). Nonetheless, because
judicial review is limited by statutory conditions, we retain jurisdiction to
determine whether those conditions exist. See Bahar, 264 F.3d at 1311; see also
Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1340 (11th Cir. 2005). Thus, we
must determine if Camacho-Salinas “is (1) an alien; (2) who is removable; (3)
based on having committed a disqualifying offense.” Moore, 251 F.3d at 923.
Because Camacho-Salinas does not contest that he is an alien removable for prior
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disqualifying crimes, § 242(a)(2)(C) “deprives us of jurisdiction to review the final
order of removal.” Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1311 (11th Cir.
2006).1 In addition, INA § 242(a)(2)(B) proscribes our jurisdiction to review
discretionary decisions made in immigration proceedings, including claims
regarding INA § 212(h) relief. See 8 U.S.C. § 1252(a)(2)(B).
However, following the passage of the REAL ID Act of 2005 and despite
other provisions which “limit[] or eliminate[] judicial review,” we retain
jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C. §
1252(a)(2)(D); Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1359-60 (11th Cir.
2005), cert. denied, __ U.S. __, 126 S. Ct. 1920 (2006). Therefore, we have
jurisdiction to address Camacho-Salinas’s Fifth Amendment equal protection claim
regarding his application for § 212(h) relief.2
B. Section 212(h)
1
We also lack jurisdiction to review Camacho-Salinas’s withholding of removal claim,
even in the absence of his convictions for crimes involving moral turpitude, due to his (1) failure
to exhaust his administrative remedies by challenging his statutory ineligibility before the BIA,
see INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th
Cir. 2001); and (2) failure to address his statutory eligibility in his brief, see Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003). We do not discern any attempt to raise an
asylum or Convention Against Torture claim in Camacho-Salinas’s brief, but, to the extent that
he raises any such claims, we lack jurisdiction to review them for the same reasons.
2
The BIA issued its own opinion and did not expressly adopt the IJ’s decision.
Therefore, this Court reviews the BIA’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review the BIA’s statutory interpretation of the INA de novo, but defer to
the BIA’s determination if it is reasonable. Moore, 251 F.3d at 921. We review de novo an
alien’s constitutional challenges. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir.
2003).
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Camacho-Salinas maintains that INA § 212(h) violates his Fifth Amendment
equal protection rights because it denies him a waiver of inadmissibility for failing
to meet the seven-year residency requirement by two years, but a similarly situated
illegal alien applicant would be eligible for such a waiver. Additionally, Camacho-
Salinas argues that the distinction between legal permanent residents and all other
applicants for § 212(h) relief serves no legitimate governmental purpose.
INA § 212(h) permits the Attorney General, in his discretion, to waive INA
§ 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i), which provides that an alien
convicted of a crime involving moral turpitude is inadmissable. 8 U.S.C. §
1182(h). This allows an LPR who committed crimes of moral turpitude to receive
a waiver of inadmissability. INA § 212(h) also provides that LPRs who have not
lawfully resided in the United States for seven years before removal proceedings
against them have begun (or who have committed aggravated felonies) are not
eligible for § 212(h) relief. 8 U.S.C. § 1182(h).3 Under the text of § 212(h), no
3
INA § 212(h) provides that “[t]he Attorney General may, in his discretion, waive the
application of” the INA provisions rendering aliens convicted of, among other things, crimes
involving moral turpitude inadmissible under certain circumstances, such as the alien’s
rehabilitation or “extreme hardship” to a United States citizen or LPR spouse, parent, or child. 8
U.S.C. § 1182(h). However,
[n]o waiver shall be granted under this subsection in the case of an alien who has
previously been admitted to the United States as an alien lawfully admitted for
permanent residence if either since the date of such admission the alien has been
convicted of an aggravated felony or the alien has not lawfully resided continuously
in the United States for a period of not less than 7 years immediately preceding the
date of initiation of proceedings to remove the alien from the United States.
8 U.S.C. § 1182(h).
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residency requirement applies to an alien who entered the country illegally and is
not an LPR.
We begin the analysis by noting that Congress possesses broad power to
regulate the admission and exclusion of aliens. INS v. Delgado, 466 U.S. 210,
235, 104 S. Ct. 1758, 1772 (1984). “Because of Congress’ plenary power over
aliens, federal classifications such as those found in INA § 212 are subject to
minimal scrutiny under the rational basis standard of review and will be found
valid if not arbitrary or unreasonable.” Moore, 251 F.3d at 924-25. Moreover,
Congress need not justify the purpose or reasoning to support its classification.
Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2642 (1993). The legislation
must be sustained if any reasonably conceivable state of facts provide a rational
basis for the classification. Id.
We have not addressed previously the precise issue raised in this case.
However, in Moore, we addressed an equal protection challenge to § 212(h) similar
to the one raised by Camacho-Salinas. There, we concluded that “Congress’
decision to prohibit lawful permanent resident aliens who commit aggravated
felonies from seeking discretionary relief under INA § 212(h) [was not] arbitrary
or unreasonable even though such relief is theoretically still available to illegal
aliens.” Moore, 251 F.3d at 926. Elimination of § 212(h) relief for LPRs who
commit aggravated felonies eradicated a source of delay in expediting the removal
8
of criminal aliens from the United States. Id. at 925. Further, LPRs “enjoy
substantial rights and privileges not shared by illegal aliens . . . . Because of the
rights and privileges they enjoy, it is arguably proper to hold them to a higher
standard and level of responsibility.” Id.
While in Moore this Court recognized that Ҥ 212(h) relief is still
theoretically available to illegal aliens,” we theorized that “Congress simply may
have seen no need to emphasize in the statute that this class of individuals could
not seek waiver” because illegal aliens are presumably removable “at any time
regardless of whether they have committed aggravated felonies in this country or
not.” Id.
Other circuit courts have rejected equal protection challenges to § 212(h).
See, e.g., Taniguchi v. Schultz, 303 F.3d 950, 957-58 (9th Cir. 2002) (rational
basis exists for denying waiver to aggravated felon LPRs but not to other aliens);
Jankowski-Burczyk v. INS, 291 F.3d 172, 178 (2d Cir. 2002) (same); Lukowski v.
INS, 279 F.3d 644, 647 (8th Cir. 2002) (same); Lara-Ruiz v. INS, 241 F.3d 934,
947 (7th Cir. 2001) (same). In De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 640
(3d Cir. 2002), the Third Circuit held that the residency requirement of § 212(h)
also passes rational basis review. Citing Moore and Lara-Ruiz, the Third Circuit
determined that the seven-year residency requirement for LPRs fulfills a legitimate
governmental purpose because “Congress could have concluded that LPRs who
9
commit crimes of moral turpitude, despite rights and privileges based on their
status that [non-LPRs] do not share, are ‘uniquely poor candidates’ for waiver.”
Id. Further, LPRs with family ties who commit crimes are a higher risk for
recidivism than non-lawful permanent residents. Id. The Third Circuit also cited
our observation in Moore that non-LPRs may be excluded from the United State
regardless of committing a crime, so the idea of non-LPR waiver eligibility is more
theoretical than real. Id.
In accord with the Third Circuit’s reasoning in De Leon-Reynoso and our
analysis in Moore, we conclude that a rational basis exists for Congress’ decision
to require LPRs to reside lawfully in the United States for seven years before
becoming eligible for a § 212(h) waiver. Particularly, our analysis in Moore of
§ 212(h)’s aggravated felon provision is equally applicable to the seven-year
residency provision at issue in this case. We see no reason why the rationales
discussed in Moore should not apply here. See Moore, 251 F.3d at 925 (pointing
to (1) the rights and privileges enjoyed by LPRs and their closer ties to the country,
(2) a potentially higher rate of recidivism among LPRs, and (3) a means to
accelerate removal of aliens who commit serious crimes). The Third Circuit’s
adoption of those rationales and its analysis of the residency provision further
supports that conclusion. See De Leon-Reynoso, 293 F.3d at 640. Therefore,
10
because a rational basis exists for the seven-year residency requirement for LPRs
in § 212(h), Camacho-Salinas has failed to state an equal protection claim.
III. CONCLUSION
For the reasons stated above, we dismiss the petition to the extent we lack
jurisdiction and deny the petition as to Camacho-Salinas’s equal protection claim.
PETITION DISMISSED IN PART; DENIED IN PART.
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