Malagon De Fuentes v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
August 28, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
))))))))))))))))))))))))))

No. 04-60897

))))))))))))))))))))))))))

ALMA RITA MALAGON DE FUENTES,

Petitioner,

v.

ALBERTO R. GONZALES, U S ATTORNEY GENERAL,

Respondent.

Petition for Review from an Order of the
Board of Immigration Appeals
No. A43 788 874

Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

The journey of Petitioner Alma Rita Malagon de Fuentes, from

Mexico to the United States, then to Mexico and back again

brought her to an odd legal intersection. While Petitioner would

not have been deportable had she stayed in the United States, her

leaving rendered her inadmissible upon return. And, because

Petitioner returned when she did, relief was not available. For

the reasons that follow, the decision of the Board of Immigration

Appeals (“BIA”) is AFFIRMED.

1
 I.

Petitioner, a native and citizen of Mexico, claims she first

came to the United States in 1982. She married, and her husband

filed an I-130 petition on her behalf in August 1987. The INS

approved the petition in September 1987, and Petitioner became a

Lawful Permanent Resident (“LPR”) on December 15, 1992. She had

four children, all born in the United States.

On July 31, 1999, Petitioner was convicted of theft of

property between $1,500 and $20,000 in a welfare fraud. She

received five years of deferred adjudication for the felony.

In August 1999, Petitioner traveled to Mexico for a day.

She did so with permission from her state probation officer. On

August 21, 1999, she requested admission to the United States as

a returning LPR. The Immigration and Naturalization Service

(“INS”) issued a Notice to Appear charging Petitioner as an

“arriving alien” inadmissible under section 212(a)(2)(A)(i)(I) of

the Immigration and Nationality Act (INA), 8 U.S.C. §

1182(a)(2)(A)(i)(I), for having committed a crime “involving

moral turpitude.”1 On October 26, 2000, an immigration judge

determined Petitioner was removable as an “arriving alien” and

1
The provision lists “any alien convicted of . . . acts
which constitute the essential elements of . . . a crime
involving moral turpitude” as among those ineligible to be
admitted to the United States. 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Petitioner does not dispute that her felony is a crime “involving
moral turpitude.”

2
ineligible for a waiver of admissibility under 8 U.S.C. §

1182(h). The immigration judge ordered her removed from the

United States.

Petitioner appealed. On December 17, 2002, the BIA adopted

and affirmed the immigration judge’s decision. Petitioner filed

a writ of habeas corpus in federal district court. On February

24, 2004, a magistrate judge recommended transferring the case to

this court for direct review. On September 30, 2004, the

district court transferred the case and stayed Petitioner’s

claims in habeas.

II.

We have jurisdiction to review Petitioner’s constitutional

claims. 8 U.S.C. § 1252(a)(2)(D); see Hadwani v. Gonzales, 445

F.3d 798, 800 (5th Cir. 2006).

III.

The first question is whether the BIA erred in upholding the

immigration judge’s determination that Petitioner was seeking

admission to the United States as defined in 8 U.S.C. §

1101(a)(13)(C)(v). The statute provides that “[a]n alien

lawfully admitted for permanent residence in the United States

shall not be regarded as seeking an admission into the United

States for purposes of the immigration laws unless the alien . .

. has committed an offense identified in section 1182(a)(2) of

this title.” There is no dispute as to whether Petitioner’s

3
crime is such an offense. She argues she cannot be considered an

“arriving alien” under the “Fleuti doctrine,” see Rosenberg v.

Fleuti, 374 U.S. 422 (1963), and that considering her one raises

constitutional concerns. The government responds that the

doctrine was superseded by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), and that

Petitioner’s case does not raise constitutional concerns.

A. IIRIRA and Fleuti

Before IIRIRA’s passage, 8 U.S.C. § 1101(a)(13) defined

“entry” as:

[A]ny coming of an alien into the United States, from a
foreign port or place or from an outlying possession,
whether voluntarily or otherwise, except that an alien
having a lawful permanent residence in the United
States shall not be regarded as making an entry into
the United States for the purposes of the immigration
laws if the alien proves to the satisfaction of the
Attorney General that his departure to a foreign port
or place or to an outlying possession was not intended
or reasonably to be expected by him or his presence in
a foreign port or place or in an outlying possession
was not voluntary.

Fleuti, 374 U.S. at 452. The Fleuti doctrine refers to the

Supreme Court’s determination that a resident alien did not

effect an entry returning from “‘an innocent, casual, and brief

excursion’ outside the United States; instead such an alien

effects an entry only if he intended to depart in a manner

‘meaningfully interruptive’ of the alien’s permanent residence.”

Carbajal-Gonzalez v. INS, 78 F.3d 194, 198 (5th Cir. 1996)

(quoting Fleuti, 374 U.S. at 462). Petitioner argues this

4
doctrine continues to apply, and that she cannot be considered to

be entering the United States because she did not intend to

“meaningfully [interrupt]” her residence.

Despite the innocent and brief nature of her trip to Mexico,2

Petitioner can be considered an arriving alien. IIRIRA

superseded the Fleuti doctrine and its intent test when the act

replaced the above-quoted provision with the current §

1101(a)(13)(C).3 The plain language of the statute does not allow

for the exception found by the Court in Fleuti.4 See Betancourt-

Parga v. Ashcroft, 126 F. App’x 165 (5th Cir. 2005)(per

curiam)(“Fleuti . . . has been superceded by the enactment of

certain [IIRIRA] provisions in cases involving suspension of

2
Petitioner went to Mexico to deliver food and medicine to
her parents, who lived in the anticipated path of Hurricane
Brett.
3
The provision reads, in pertinent part: “[a]n alien
lawfully admitted for permanent residence in the United States
shall not be regarded as seeking an admission into the United
States for purposes of the immigration laws unless the alien . .
. has committed an offense identified in section 1182(a)(2) of
this title.”
4
Petitioner argues that § 1101(a)(13)’s language does not
require that she be deemed to be seeking admission. She points
to the placement of the word “unless,” reading it as establishing
only a necessary condition for the identification of an LPR as
seeking admission. Petitioner asserts that this construction
leaves open the possibility that a person in her position could
be deemed not to be seeking admission. Even assuming the
provision reads as she suggests, it in no way precludes the
identification of an LPR who has committed a listed offense as
seeking admission. Petitioner claims the discretion not to
identify her as seeking admission should be exercised because her
case implicates constitutional concerns. We address these
concerns in the paragraphs that follow.

5
deportation”). Our conclusion regarding IIRIRA’s effect on the

Fleuti doctrine is consistent with those of our sister circuits.

See, e.g., Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir.

2003)(“The Fleuti doctrine . . . has been superseded by the

IIRIRA”); Tineo v. Ashcroft, 350 F.3d 382, 394 (3rd Cir.

2003)(“Congress has also set forth six scenarios under which a

returning lawful permanent resident may not retain that status.

In those scenarios, where Congress has deemed Fleuti doctrine

irrelevant, § 301(a)(13) cannot be read to permit an inquiry into

the alien’s intent.”); see also Rivera-Jimenez v. INS, 214 F.3d

1213, 1218 n.6 (10th Cir. 2000) (noting absence of “brief,

casual, and innocent and did not meaningfully interrupt the

continuous physical presence” provision for calculating residence

period in IIRIRA).

Even if the effect of IIRIRA on the Fleuti doctrine were not

so plain, the deference we accord the BIA regarding its

construction of immigration law yields the same result. In In re

Collado, the BIA concluded that the Fleuti doctrine did not

survive IIRIRA’s passage. 21 I. & N. Dec. 1061, 1064-66 & n.3

(BIA 1998).5 Under Chevron, U.S.A., Inc. v. Natural Resources

5
“Congress has directed that a returning lawful permanent
resident who is described in sections 101(a)(13)(C)(i)-(vi) of
the Act shall be regarded as ‘seeking an admission’ into the
United States, without regard to whether the alien’s departure
from the United States might previously have been regarded as
‘brief, casual, and innocent’ under the Fleuti doctrine.” Id. at
1066.

6
Defense Council, Inc., we subject the BIA’s construction of the

law it administers to a deferential review. Salazar-Regino v.

Trominski, 415 F.3d 436, 442 (5th Cir. 2005)(citing Chevron, 467

U.S. 837 (1984)). This review involves a two-step inquiry.

First, we ask whether Congress has directly spoken to the precise

question at issue. If Congress’ intent is clear, the agency and

the courts are bound to give effect to it. Id. at 443 (quoting

Moosa v. INS, 171 F.3d 994, 1005 (5th Cir. 1999)). If the

statute is silent or ambiguous with respect to the specific

issue, we ask the second question, whether “the agency’s answer

is based on a permissible construction of the statute.” Id. As

discussed above, we find the statute’s language to be clear.

Even were it not, Petitioner’s observation–that the placement of

the word “unless” allows for the logical possibility of an LPR

who has committed one of the listed offenses not being deemed to

seek admission–does not render the BIA’s reading of the statute

impermissible. The statute’s command that an LPR “shall not” be

regarded as seeking admission “unless” she has committed a crime

of moral turpitude certainly permits the determination of an LPR

who has committed such a crime as seeking admission. Even if we

agreed with Petitioner’s reading, to hold otherwise would be to

“simply impose [this court’s] own construction on the statute, as

would be necessary in the absence of an administrative

interpretation.” Id. at 443. Chevron commands we not go so far.

7
 B. Constitutional Objections

Petitioner raises constitutional objections to the

determination of her as an arriving alien. These take a variety

of forms,6 but boil down to an argument that her treatment

violates a nebulous “constitutional core” of Fleuti and the Fifth

Amendment Due Process Clause’s guarantees of equal protection and

due process.7

Petitioner argues that Fleuti, while nominally based on

statutory grounds, in fact reaffirmed a “constitutional core” of

fair treatment of immigrants that courts had applied prior to §

101(a)(13)’s enactment in 1952. In tracing the Congressional

intent behind the statute, the Fleuti Court did indeed review the

caselaw preceding the INA’s enactment, in particular the

judicially-developed definition of “entry.” Fleuti, 374 U.S. at

453. In several instances, judges had endeavored to ameliorate

the rather harsh definition adopted by the Court in United States

6
Petitioner argues, among other things, that (1) IIRIRA’s
passage could not and did not overrule the alleged
“constitutional core” of Fleuti; that (2) the doctrine of
constitutional avoidance requires that § 1101(a)(13)(C) be read
so as to avoid any constitutional concern; and (3) that the BIA’s
interpretation of the statute in In re Collado does not apply
because that case did not raise the constitutional issues
presented here.
7
See U.S. CONST. amend. V, § 3 (“No person shall . . . be
deprived of life, liberty, or property, without due process of
law”). “The Fifth Amendment applies to the federal government a
version of equal protection largely similar to that which governs
the states under the Fourteenth Amendment.” Rodriguez-Silva v.
INS, 242 F.3d 243, 247 (5th Cir. 2001).

8
ex rel Volpe v. Smith, 289 U.S. 422 (1933), which excluded even

long-standing resident aliens who left only briefly. Id. at 453-

460 (citing Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948);

Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947); Del Guercio

v. Delgadillo, 159 F.2d 130 (9th Cir. 1947); and Di Pasquale v.

Karnuth, 158 F.2d 878 (2nd Cir. 1947)). The Fleuti court’s

discussion of these opinions, which preceded Congress’ passage of

§ 101(a)(13), does not evince any “constitutional core.” In Di

Pasquale and Delgadillo, the primary cases discussed in Fleuti,

the judges looked to Congress and its intent to ameliorate a

judicial rule. Fleuti, 374 U.S. at 455-56. Nowhere in this

Fleuti discussion is the Constitution even mentioned.8 Fleuti is

properly read as a case of statutory interpretation, and the

statute it interprets has been amended. No “constitutional core”

has been violated in this case.

With respect to equal protection, Petitioner claims that §

8
In dicta supporting the general thrust of its result, the
Fleuti Court did refer to its holding in Kwong Hai Chew v.
Colding, that a returning resident alien is entitled as a matter
of due process to a hearing on the charges underlying any attempt
to exclude him. 344 U.S. 590, 600 (1953). Even if it were
considered part of the “constitutional core” to which Petitioner
refers, Kwong Hai would be of no assistance here. That case
involved a procedural due process challenge to the government’s
detention of an alien without a hearing. Id. at 602-603. There
is no allegation that Petitioner was deprived of a hearing, and
indeed she has had several. To the extent Kwong Hai stands for
the broad proposition that LPRs have constitutional rights, which
they do, the case is not helpful here. The question is the
character of those rights, and Fleuti does not speak to it.

9
1101(a)(13) is unconstitutional as-applied because there is no

rational basis to distinguish between LPRs who have committed

offenses under § 1182(a)(2)and left the country briefly and those

who have also committed the offenses but have not left. Having

left the country renders the former category inadmissible even

though they might not be deportable under 8 U.S.C. § 1227(a)(2).9

We subject the classification at issue to rational basis

review. Because Petitioner’s claim attacks a congressionally-

drawn distinction among aliens, our equal protection review is

necessarily narrow; for “over no conceivable subject is the

legislative power of Congress more complete than it is over the

admission of aliens.” Rodriguez-Silva, 242 F.3d at 246 (quoting

Fiallo v. Bell, 430 U.S. 787 (1977) (punctuation omitted); see

also Castillo-Alvaros v. Gonzales, 136 F. App’x 629, 630 n.4 (5th

Cir. 2005)(per curiam)(“Congress may make classifications of

aliens as long as it has a facially legitimate reason for making

the distinction”). Indeed, “the federal government can enact

legislation that would be invalid under the Fourteenth Amendment

if enacted by a State, particularly if the legislation relate[s]

9
This provision allows the Attorney General to deport, among
others, aliens who have committed crimes of moral turpitude.
However, such a person is defined as “[a]ny alien who (I) is
convicted of a crime involving moral turpitude committed within
five years (or 10 years in the case of an alien provided lawful
permanent resident status under section 1255(j) of this title)
after the date of admission, and (II) is convicted of a crime for
which a sentence of one year or longer may be imposed.”

10
to immigration.” Id. at 247. We thus apply rational basis

review to Petitioner’s claims. Madriz-Alvarado v. Ashcroft, 383

F.3d 321, 332 (5th Cir. 2004).

Rational basis review begins with a strong presumption of

constitutional validity. Flores-Ledezma v. Gonzales, 415 F.3d

375, 381 (5th Cir. 2005)(citing Heller v. Doe, 509 U.S. 312, 319

(1993)). It is Petitioner’s burden to show that the law, as-

applied, is arbitrary; and not the government’s to establish

rationality. Kite v. Marshall, 661 F.2d 1027, 1030 (5th Cir.

1981). “Under rational basis review, differential treatment

‘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.’” Madriz-Alvarado, 383

F.3d at 332 (quoting FCC v. Beach Commc’ns, 508 U.S. 307 (1993)).

Petitioner argues that Congress has proffered no reason to

distinguish between an LPR not subject to deportation who leaves

the United States briefly for innocent purposes and one who did

not leave.

The lines drawn here by Congress separate LPRs who have

committed violations from those who have not, and those who

remain in the country from those who do not. Congress’ choice to

disfavor the admission of aliens who have committed offenses is

not irrational. See Giusto v. INS, 9 F.3d 8, 10 (2nd Cir. 1993)

(upholding § 1182(c)’s making discretionary relief unavailable to

11
alien who has committed certain crimes against equal protection

challenge). Nor is its decision to make getting into the United

States more difficult than remaining. See, e.g., Gisbert v. U.S.

Att’y Gen., 988 F.2d 1437, 1440 (5th Cir. 1993) (noting “[a]liens

subject to deportation generally are granted greater substantive

rights than are excludable aliens”); Alvarez-Garcia v. Ashcroft,

378 F.3d 1094 (9th Cir. 2004) (determining equal protection not

denied where excludable alien required to undergo sundry

procedures for admission where deportable alien’s claims would be

considered in deportation hearing); but see Chuang v. U.S. Att’y

Gen, 382 F.3d 1299 (11th Cir. 2004) (upholding against equal

protection attack Antiterrorism and Effective Death Penalty Act’s

bar against discretionary relief for deportable aliens and

allowance for such relief for excludable aliens). That

Petitioner, by dint of her decisions to commit welfare fraud and

leave the country, finds herself doubly disadvantaged does not

mean her constitutional rights have been violated. Her innocent

reason for departing the United States does not affect the

constitutionality of Congress’ law, or its application.

Petitioner likens her case to Francis v. INS. 532 F.2d 268

(2nd Cir. 1976). In Francis, the Second Circuit determined that

the BIA’s interpretation of the INA deprived the petitioner of

equal protection where it rendered him ineligible for

discretionary waiver by virtue (or vice) of his conviction for a

12
marijuana offense. Because of the piecemeal way waiver had been

applied to certain deportation proceedings, Francis would have

been eligible had he left, and then re-entered, the United

States. Id. at 269. “Fundamental fairness dictates,” the court

wrote, “that permanent resident aliens who are in like

circumstances, but for irrelevant and fortuitous factors, be

treated in a like manner.” Id. at 273. Francis concerned a

distinction drawn between aliens in deportation proceedings.

Although the plain language of the provision at issue, § 212(c)

of the INA, was limited to exclusion proceedings, several

decisions had extended its application to certain deportation

contexts.10 The Second Circuit saw no reason to distinguish those

deportation contexts from Francis’. Even if Francis were on

point statutorily and retained its force in light of subsequent

amendments, the case is of no aid to Petitioner. First, this

Circuit has refused to extend the meaning of Francis to the

distinction between aliens being deported and those being

excluded, which is at issue here. See Requena-Rodriguez v.

Pasquarell, 190 F.3d 299, 309 (5th Cir. 1999). Second,

Petitioner’s case is the obverse of Francis. She is disadvantaged

because she left, not because she stayed. The case’s reasoning,

equating not departing with a strong tie to the United States

10
The provision has since been amended. See 8 U.S.C. §
1182(c).

13
meriting better treatment, Francis, 532 F.2d at 273, does not

apply here. Where immigration is concerned, it is hardly

irrational to attach legal detriment to leaving the country.

Petitioner also raises a substantive due process challenge

to her designation as an arriving alien. She argues that her

liberty interests in staying in the United States and being with

her children have been violated, and that her designation as

arriving is fundamentally unfair. To establish a substantive due

process violation, a plaintiff must first both carefully describe

that right and establish it as “deeply rooted in this Nation’s

history and tradition.” Washington v. Glucksberg, 521 U.S. 702,

720-21 (1997) (quoting Moore v. East Cleveland, 431 U.S. 494, 503

(1977)). If the right is so deeply rooted–if it is

fundamental–we subject it to more exacting standards of review.

If it is not, we review only for a rational basis. Brennan v.

Stewart, 834 F.2d 1248, 1255-57 (5th Cir. 1988).

Petitioner has no “right” to be admitted to the United

States. United States v. Lopez-Vasquez, 227 F.3d 476, 484-85

(5th Cir. 2000). And while parents do have certain fundamental

rights with respect to their children,11 beyond keeping her from

the United States, Petitioner does not claim that the government

has interfered with any such right. She is welcome to take her

11
See, e.g., Littlefield v. Forney Ind. Sch. Dist., 268 F.3d
275, 288 (5th Cir. 2001)(recognizing the care, custody and
control of children as fundamental liberty interests).

14
children with her to Mexico. Petitioner’s predicament does not

constitute a deprivation of substantive due process. See, e.g.,

McCurdy v. Dodd, 352 F.3d 820, 827 (3rd Cir. 2003) (“[T]he

Supreme Court has protected the parent only when the government

directly acts to sever or otherwise affect his or her legal

relationship with a child. The Court has never held that

governmental action that affects the parental relationship only

incidentally . . . is susceptible to challenge for a violation of

due process”) (quoting Valdivieso Ortiz v. Burgos, 807 F.2d 6, 8

(1st Cir. 1986)). To find a substantive due process violation of

parental rights here would subject to strict scrutiny any attempt

by the government to incarcerate or bar from entry into the

country a parent with children, or child with parents, in the

United States. This cannot be the proper rule. What Petitioner

seeks is admission, and the government needs only a rational

basis to enforce a law that bars her admission. As discussed

above, it has one.

Petitioner’s fundamental unfairness argument is nothing more

than her equal protection argument recast in substantive due

process terms, and we reject it.

IV.

The second question is whether the BIA erred in concluding

Fuentes was ineligible for a waiver of admissibility under §

15
1182(h).12 Petitioner’s main argument is that her ineligibility

deprives her of equal protection. As discussed above, we conduct

only rational basis review. Petitioner makes two arguments that

her ineligibility for waiver violates equal protection. First,

she asserts that, by requiring LPRs, but not “non-LPRs,” to

reside lawfully for seven years in order to be eligible for a §

1182(h) waiver, the statute denies her equal protection.

Petitioner asserts it is irrational to make LPRs ineligible for a

waiver for which non-LPRs, who enter the country illegally, are

eligible. Every one of our sister courts to have addressed this

question have upheld § 1182(h)’s apparent favoring of non-LPRs

against equal protection attack. See De Leon-Reynoso v.

Ashcroft, 293 F.3d 633, 640 (3rd Cir. 2002); Jankowski-Burczyk v.

I.N.S., 291 F.3d 172, 178 (2nd Cir. 2002); Lukowski v. I.N.S.,

279 F.3d 644, 647-48 (8th Cir. 2002); Moore v. Ashcroft, 251 F.3d

919, 925 (11th Cir. 2001); Lara-Ruiz v. I.N.S., 241 F.3d 934, 947

(2nd Cir. 2001); Umanzor v. U.S.I.N.S., 178 F.3d 1286 (4th Cir.

12
§ 1182(h) allows for waivers of inadmissibility based on
criminal and related grounds where the alien seeking waiver has a
relationship with a United States citizen and provides, in
pertinent part, that “[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.” Id.

16
1999) (Table). In doing, they have identified several different

rationales that might underlie the distinction. We agree with

them that the law has a rational basis.

Second, and chiefly, Petitioner challenges the operation of

the statute as-applied, arguing there is no basis to deny the

waiver to LPRs inadmissible under § 1182(a)(2)(A)(i)(I) who leave

and return within 180 days of the end of the seven year period

when those who leave and remain outside the country are eligible.

The factual and legal basis for this claim requires explanation.

Petitioner became an LPR on December 15, 1992. When she returned

from Mexico on August 21, 1999, she had roughly four months until

the seven year residence bar to waiver in § 1182(h) would cease

to apply. Under § 1101(a)(13)(C)(ii), an LPR is not considered

to be seeking admission unless he or she has been absent from the

country for a continuous period in excess of 180 days. Had

Petitioner remained in Mexico through the seven year anniversary

of her achievement of LPR status and then attempted to return,

she would not have exceeded 180 days, and thus not been

considered to be seeking admission because of the length of her

absence.13 In other words, her return to the United States barred

the possibility of a waiver of admissibility.

Petitioner argues that the intersection of § 1101 and § 1182

13
Because of her conviction, Petitioner was considered to be
seeking admission anyway, under § 1101(a)(13)(C)(v). However,
that subsection provides an exception for the operation of the §
1182(h) waiver.

17
creates an irrational distinction between LPRs within 180 days of

eligibility for waiver who leave and do not return until they are

eligible and those who return before they are eligible. Because

an LPR convicted of a crime of moral turpitude who leaves the

United States within 180 days of her seven year anniversary and

remains outside our borders until that date arrives is not

similarly situated to Petitioner, the Constitution presents no

bar to the law’s application. The Constitution guarantees the

equal treatment of those similarly-situated. It prohibits

“different treatment . . . accorded to persons placed by a

statute into different classes on the basis of criteria wholly

unrelated to the objective of that statute.” Eisenstadt v.

Baird, 405 U.S. 438, 446 (1972). But, for good reason, where

people are not similarly-situated, equal treatment is not

required. Kotch v. Bd. of River Port Pilot Comm’rs for Port of

New Orleans, 330 U.S. 552, 556 (1947) (“Otherwise, effective

regulation in the public interest could not be provided, however

essential that regulation might be. For it is axiomatic that the

consequence of regulating by setting apart a classified group is

that those in it will be subject to some restrictions or receive

certain advantages that do not apply to other groups or to all

the public.”). By virtue of the date she sought admission,

Petitioner is distinct from LPRs who have committed crimes of

moral turpitude, left the country and not returned until their

18
seven year anniversary. She sought admission before § 1182(h)’s

period elapsed. One apparent “object” of § 1182(h) is to

condition waiver eligibility (a benefit) on seven years of legal

residency. Whether that time period is the proper one is not

this court’s concern, for Congress has decided to imbue it with

meaning. That Petitioner sought admission before it elapsed

makes her materially-distinct.

There is no indication Petitioner is, in fact, being treated

differently from anyone. On the date she sought admission,

August 21, 1999, Petitioner was ineligible for waiver under §

1182(h) regardless of her location and travel plans. In other

words, whether she remained in Mexico was irrelevant because §

1182(h)’s seven year residency requirement operates independently

of § 1101's definition of an arriving alien.14 Petitioner posits

that, had she remained in Mexico through December 13,15 she would

have been eligible. But she did not. An immigrant who began his

or her lawful permanent residency on the same day as Petitioner

and left the United States when she did, but chose to remain

abroad would also have been ineligible for waiver if they sought

it when Petitioner did.

The group of which Petitioner claims she is a part,

14
Of course, had she chosen to remain, the issue of
admissibility to the United States would not have arisen.
15
According to Petitioner, this date is the seven year
anniversary of her legal residency.

19
inadmissible LPRs with less than 180 days until they are eligible

for waiver who return to the United States, is not so much a

classification created by the law as a description of those

against whom it works. Whenever a law draws a line which

separates those who benefit from it and those who do not,

examining a sufficiently narrow “classification” will yield

apparent inequities. But the Constitution does not protect

against a law having a negative impact. A plaintiff cannot

simply tailor their alleged classification to the contours of a

statute, ascertain those impacted negatively and establish a

denial of equal protection.

Even if one could consider Petitioner similarly-situated to

the hypothetical other LPR she posits, our conclusion with

respect to equal protection would nonetheless be the same because

the classification Petitioner challenges survives rational basis

review. She stresses the apparent irrationality of her

ineligibility for waiver under § 1182(h) given that, had she

stayed in Mexico until the seven-year anniversary of her legal

residence in the United States, she would have been eligible. We

find no equal protection problem in § 1182(h)’s seven year

residency requirement. Congress has an interest in having

putative citizens demonstrate their willingness to live in our

society and to accept the responsibilities we demand of its

members. Nor is § 1101(a)(13)(C)(ii)’s inclusion among those not

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seeking admission of aliens who have been absent from the United

States for up to 180 days problematic. The provision does

distinguish between those gone for 180 days and those gone for

longer, but Congress is not forbidden from making such

distinctions. The line drawn by § 1101(a)(13)(C)(ii) reasonably

effectuates Congress’ goal of allowing LPRs some freedom to

travel in and out of the country. That it does not have the

effect of reducing the seven year period in § 1182(h) by 180 days

is not troubling for equal protection purposes, and we see no

reason to give it such an effect here.

The apparent irrationality to which Petitioner points is the

result of the intersection of two valid, and validly and equally

applied laws. In the classic equal protection case, a single law

“creates different rules for distinct groups of individuals based

on a suspect classification.” Wirzburger v. Galvin, 412 F.3d

271, 283 (1st Cir. 2005)(citing Strauder v. West Virginia, 100

U.S. 303 (1879)). Petitioner’s argument does not address one

law, but rather what she claims is the odd intersection of two.

A rationale exists for each, and there is no suggestion of

invidious discrimination in their application (or lack thereof).

“The prohibition of the Equal Protection Clause goes no further

than . . . invidious discrimination.” F.C.C. v. Beach

Communications, 508 U.S. 307, 316 (1993) (quoting Williamson v.

Lee Optical of Okla., Inc., 348 U.S. 483489 (1955)).

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 What Petitioner seeks is the application of §

1101(a)(13)(C)(ii)’s exception to § 1182(h)’s limitation because

she believes it is unfair that, had she stayed in Mexico, she

would be eligible for waiver. Perhaps it is unfair; but here

reasonable laws are being applied equally, and “equal protection

is not a license courts to judge the wisdom, fairness, or logic

of legislative choices.” Id. at 313.

Petitioner also argues that her ineligibility for a §

1182(h) waiver constitutes a deprivation of substantive due

process. Because she has no constitutionally protected liberty

interest in eligibility for discretionary relief, see, e.g.,

Ahmed v. Gonzales, 447 F.3d 433, 400 (5th Cir. 2006), and because

the law has a rational basis, Petitioner cannot establish a

violation of substantive due process.

V.

For the reasons above, the petition for review is DENIED.

WIENER, Circuit Judge, specially concurring:
 I concur in the judgment and in all but one portion of the

panel majority’s opinion. Part IV of that opinion analyzes

Fuentes’s as-applied equal protection challenge to her

ineligibility for a waiver of inadmissibility under 8 U.S.C.

§ 1182(h). In that Part, the majority first holds that Fuentes’s

challenge need not be analyzed under equal-protection principles,

because Fuentes has not demonstrated how she was treated

differently than a similarly situated hypothetical person. It

then holds, in the alternative, that even if Fuentes has

demonstrated such differential treatment, the BIA’s denial of her

eligibility for a § 1182(h) waiver was rational, and thus did not

deprive Fuentes of equal protection of the law.

With sincere respect, I cannot disabuse myself of two points

of disagreement with the majority’s first conclusion —— that

Fuentes has not demonstrated treatment distinct from that

accorded to a similarly situated person. First, I am convinced

that Fuentes has clearly demonstrated that she was subjected to

differential governmental treatment; here’s how.

For the sake of simplicity, I refer to Fuentes as “A” and

her “twin,” the similarly situated hypothetical person, as “B”:

(1) both A and B became LPRs on the same day, December 15, 1992;

(2) in December of 1999, both A and B would have been LPRs for

seven years, satisfying § 1182(h)’s temporal pre-requisite; (3)

both A and B were convicted of a crime of moral turpitude on July

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31, 1999; (4) both A and B leave the United States and travel to

Mexico on the same day in August of 1999, which is within less

than 180 days of reaching § 1182(h)’s seven-year benchmark in

December of that year; (5) both A and B remain in Mexico for less

than 180 days. So far, the twins are identical; now for their

one distinguishing difference: A returns to the United States on

the same day in August 1999 that she departed (well before the

conclusion of her seven-year period), having spent just a few

hours in Mexico; B, by contrast, stays in Mexico for roughly four

months, not returning to the United States until one day after

her seven-year period has run.

Now for more identical features, all these occurring after

A’s and B’s returns from Mexico to the United States. A and B

are each issued notices to appear, charging each with being

inadmissible arriving aliens under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Both A and B appear before an IJ on

October 26, 2000, each asserting eligibility to file for a

§ 1182(h) waiver of inadmissibility. Notably, by October 26,

2000 —— the date on which A and B each seek to demonstrate their

eligibility for a § 1182(h) waiver —— both A and B have been LPRs

for more than seven years. Thus, even after their returns from

Mexico, the only distinguishing fact between the two is that A

returned to the United States from Mexico before her seven-year

period had run, and B returned after hers had. That’s it: A and

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B are identical in every other material respect.

Now for how I perceive Fuentes as having framed her as-

applied equal protection challenge to her ineligibility for a §

1182(h) waiver. She based it on the one legally-operative fact

that distinguishes her from her hypothetical twin —— the

different dates on which each returned to the United States.

Those dates straddle their shared seven-year LPR anniversaries,

A’s return was short of it and B’s was after it. A and B are

otherwise similarly situated.

Second, I am concerned that the majority’s strain to

conclude that Fuentes is not situated similarly to her

hypothetical twin may have broad, if unintended, consequences for

future equal-protection challenges to temporal limitations

embodied in generally applicable statutes. If, as the majority

reasons, Fuentes is not situated similarly to her twin because

she sought admission to the United States before her seventh

anniversary as an LPR, while her twin sought it after hers, then

how can any future litigant who challenges on equal-protection

grounds a statutory temporal condition precedent’s bar to his

receiving a governmental benefit ever prove that he is similarly

situated to someone who, because of a single difference in

timing, is eligible for the benefit? Try as I may, I am unable

to conceive of a set of facts under which he could. So, unless I

am just plain wrong, the practical effect of the panel majority’s

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opinion is to remove from equal-protection scrutiny many temporal

limitations embodied in federal and state statutes. As that

result goes too far for me to accept, I cannot concur in it.

I do not, however, differ with the panel majority’s

alternative holding in Part IV of its opinion —— that even if

Fuentes did prove differential treatment (as I believe she did),

the BIA’s denial of her eligibility for a § 1182(h) waiver did

not deprive her of equal protection. I therefore concur in that

holding and in the judgment, satisfied that, for the reasons set

forth in the majority’s opinion, the differential treatment

experienced by Fuentes was rationally related to legitimate

governmental interests.

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