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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