IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 4, 2008
No. 07-60039 Charles R. Fulbruge III
Clerk
JOSE RAFAEL PEREZ PIMENTEL
Petitioner
v.
MICHAEL B. MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review from an Order of
the Board of Immigration Appeals
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:
Jose Rafael Perez Pimentel petitions this Court for review from an order
of the Board of Immigration Appeals denying waiver of inadmissibility and
application for adjustment of status. We conclude that the Attorney General’s
regulation was not an ultra vires act and was not impermissibly retroactively
applied. Thus, we DENY the petition.
I. BACKGROUND
Petitioner Pimentel is a native and citizen of Mexico. He entered the
United States without inspection in 1978. He was convicted of burglary in 1983
and possession of marijuana in 1990. In 2004, Pimentel was served with a
Notice to Appear (“NTA”) that alleged he was removable as an alien present
No. 07-60039
without admission or parole, as an alien convicted of a crime involving moral
turpitude, and as an alien convicted of a controlled substance offense.
Pimentel appeared before an immigration judge (IJ), admitted the
allegations in the NTA, and conceded his removability. He sought adjustment
of status through an employment-based visa petition and a waiver of
inadmissibility.
Pimentel testified that he is married with three children, including two
children who are U.S. citizens; however, his wife and his other child have no
legal immigration status. He testified that he was employed, and his employer
had petitioned for an employment visa.
Pimentel testified that he had been arrested for burglary in 1983. He said
he had agreed to help a man who claimed he was removing items from his own
home. Pimentel said he was sentenced to two years of imprisonment and served
only nine months. He also testified that he was arrested in 1990 for marijuana
possession after police found him in possession of the remains of marijuana
cigarettes.
If he were deported, Pimentel first stated his children would accompany
him; later, he said he would leave his children in the U.S. because he would not
be able to provide for their education and other needs in Mexico. Pimentel
testified that his older son previously had surgery on his back, and he required
a doctor’s visit for pain medication every two to three months. Pimentel said
only his oldest child had been to Mexico. He said his children spoke only a “little
bit” of Spanish. He said he has no family in Mexico, but his wife does have
family there. Pimentel also testified that he has numerous other family
members living in the United States.
Pimentel’s wife stated that she and the children would return to Mexico
if he was deported. She said the family was entirely dependant on Pimentel’s
income. She also testified that the family would suffer if they went to Mexico
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because the children “don’t know what Mexico is about and they’re not going to
be able to become what they want to become.” She also stated the family would
be unable to live with other family in Mexico due to space limitations.
The IJ first found that Pimentel’s conviction for possession of a personal
use amount of marijuana did not require a waiver of inadmissibility. However,
the IJ found that his burglary conviction would require a “Section 212(h)” waiver
of inadmissibility. The IJ found that 8 C.F.R. § 212.7(d) applied because the
burglary conviction constituted a violent crime. Pursuant to § 212.7(d), the IJ
found that Pimentel must establish that the denial of a visa “would result in
exceptional and extremely unusual hardship.” The IJ concluded that, although
Pimentel’s U.S. citizen children would suffer “extreme hardship” if they moved
to Mexico with Pimentel, he had not shown the required “exceptional and
extremely unusual hardship.” The IJ denied Pimentel’s application for a waiver
of inadmissibility; because he was inadmissible, the IJ also denied his
application for adjustment of status.
Pimentel appealed to the BIA. The BIA affirmed the IJ’s finding that
Pimentel’s prior burglary conviction was a “violent or dangerous crime.” The
BIA also affirmed the finding that Pimentel had not shown that his two U.S.
citizen children would suffer “exceptional and extremely unusual hardship.” The
BIA affirmed the denial of a waiver of inadmissibility and the denial of an
adjustment of status.
Pimentel filed a petition for review in this Court. He then moved the BIA
to reconsider its decision, or in the alternative to reopen and remand. Pimentel
also filed a motion in this Court to hold his petition in abeyance, which was
granted. The BIA denied Pimentel’s motion; however, he did not file a timely
petition for review of the denial of his motion for reconsideration. Thus, we do
not review the BIA’s denial of reconsideration.
II. ANALYSIS
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A. ULTRA VIRES
Pimentel contends that the Attorney General’s promulgation of 8 C.F.R.
§ 212.7(d) was an ultra vires amendment of 8 U.S.C. 1182(h). This Court gives
deference to the BIA’s interpretation of the Immigration and Nationality Act
(INA) under the principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). Chevron provides for a two-step inquiry. “We first ask
whether Congress has spoken directly to the precise question at issue.” Heaven
v. Gonzalez, 473 F.3d 167, 174-75 (5th Cir. 2006) (citing Chevron, 467 U.S. at
842; Malagon de Fuentes v. Gonzales, 462 F.3d 498, 502 (5th Cir. 2006)). “If
Congress’s intent is clear, the BIA and this court must give effect to that intent.”
Id. at 175 (citing Chevron, 467 U.S. at 842-43; Malagon, 462 F.3d at 502).
However, if “the statute is silent or ambiguous with respect to the specific issue,
we ask only whether ‘the agency’s answer is based on a permissible construction
of the statute.’” Id. (quoting Chevron, 467 U.S. at 843; Malagon, 462 F.3d at
502).
The statute in question provides that the Attorney General may waive
inadmissibility “in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States . . . if it is established to the
satisfaction of the Attorney General that the alien’s denial of admission would
result in extreme hardship to the United States citizen.” 8 U.S.C. §
1182(h)(1)(B). The regulation provides that the Attorney General generally “will
not favorably exercise discretion . . . with respect to immigrant aliens who are
inadmissible . . . in cases involving violent or dangerous crimes, except in
extraordinary circumstances, such as those . . . cases in which an alien clearly
demonstrates that the denial of [relief] would result in exceptional and
extremely unusual hardship.” 8 C.F.R. § 212.7(d).
Pimentel asserts that heightening the requirement from “extreme
hardship” to “exceptional and extremely unusual hardship” with respect to a
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No. 07-60039
waiver of inadmissibility for violent crimes constituted an ultra vires act. As
indicated above, our first inquiry under Chevron is whether Congress has spoken
directly with respect to the precise question. Pimentel argues that Congress has
clearly specified that the proper standard is “extreme hardship.” However,
Pimentel fails to address the entirety of the statute. In § 1182(h)(1)(B), Congress
did specify that the Attorney General “may, in his discretion” waive
inadmissibility if the alien can show “extreme hardship” to a qualifying relative.
Additionally, in § 1182(h)(2), Congress specified that the “Attorney General, in
his discretion, and pursuant to such terms, conditions and procedures as he may
by regulations prescribe,” must consent to the alien’s application for the
underlying relief sought. By its own terms, the regulation at § 212.7(d) is
directed at § 1182(h)(2), rather than § 1182(h)(1)(B). See § 212.7(d) (stating that
“[t]he Attorney General, in general, will not favorably exercise discretion under
section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2))”). Thus, Congress has not
spoken to the standards the Attorney General may employ under § 1182(h)(2),
and the regulation is directed only to the Attorney General’s discretion under
that subsection. The Ninth Circuit agrees. In Mejia v. Gonzales, the court
opined that the failure of Congress to provide any standard for the Attorney
General’s exercise of discretion under § 1182(h)(2) meant that Congress has not
“directly spoken to the precise question at issue.” 499 F.3d 991, 996 (9th Cir.
2007).
The second step of the Chevron analysis is to examine whether the
regulation is “based on a permissible construction of the statute.” Chevron, 467
U.S. at 843. Pimentel argues that the regulation is not a permissible
construction of the statute because it is vague, arbitrary, and capricious.
In Mejia, the Ninth Circuit held that the instant regulation was based on
a permissible interpretation of the statute, explaining that the “heightened
standard is rationally related to the national immigration policy of not admitting
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No. 07-60039
aliens who could be a danger to society.” 499 F.3d at 996 (citing Jean v.
Gonzales, 452 F.3d 392, 396-98 (5th Cir. 2006) (other citations omitted). The
Ninth Circuit relied on this Court’s decision in Jean because Jean involved
language nearly identical to that later codified at § 212.7(d). Id. (citing Jean,452
F.3d at 396-98). In Jean, after directing that the case be referred to his office,
the Attorney General reversed the BIA and concluded that he generally would
decline to exercise his discretion to grant an adjustment of status to “violent or
dangerous individuals except in extraordinary circumstances, such as . . . cases
in which an alien clearly demonstrates that the denial . . . would result in
exceptional and extremely unusual hardship.” 452 F.3d at 397 (quoting In re
Jean, 23 I. & N. Dec. 373, 383 (BIA 2002)). Following the Attorney General’s
decision, Jean filed a habeas petition, arguing in relevant part that the Attorney
General’s decision was ultra vires. Jean, 452 F.3d at 395. After this Court
converted Jean’s habeas petition to a petition for review, it concluded that the
Attorney General had acted lawfully. Id. at 397-98. We noted that the
“heightened ‘extreme hardship’” standard was imposed only on a limited class,
i.e., aliens who engaged in violent criminal acts. Id. at 397. We further noted
that the Attorney General “did not add a class of aliens to those who are
statutorily ineligible for waiver, nor did he instruct the BIA to ignore the
statutory considerations.” Id. This Court concluded that the Attorney General
had “acted within his broad discretion” and that the standard articulated was
“rational and connected to the statutory scheme.” Id. Because the Attorney
General “did not exceed the discretionary authority afforded to him by
Congress,” this Court concluded that the Attorney General’s decision was not
ultra vires. Id. at 397-98; accord Ali v. Achim, 468 F.3d 462, 466-67 (7th Cir.
2006) (explaining that it “agree[d] with our sister circuits that the Attorney
General did not exceed his statutory authority when he articulated the
heightened waiver standard in Matter of Jean”).
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Although Jean did not involve the instant regulation, like the Ninth
Circuit in Mejia, 499 F.3d at 996-97, we perceive no principled distinction and
therefore must conclude that the promulgation of 8 C.F.R. § 212.7(d) was a
permissible construction of the statute and not ultra vires.
B. RETROACTIVE APPLICATION
Pimentel also suggests that the regulation is impermissibly retroactive.
To determine whether a regulation may be applied retroactively, a reviewing
court first examines whether the regulation clearly expresses whether it is to be
applied retroactively. Landgraf v. U.S.I. Film Products, 511 U.S. 244, 280
(1994). If there is no clear expression as to retroactivity, the court then
considers whether the regulation would have a retroactive effect. Id.; I.N.S. v.
St. Cyr, 533 U.S. 289, 321 (2001). There is a retroactive effect when the new
regulation “takes away or impairs vested rights . . . creates a new obligation,
imposes a new duty, or attaches a new disability, in respect to transactions or
considerations already past.” St. Cyr, 533 U.S. at 321 (internal quotation marks
footnote and citations omitted).
In the instant case, the regulation does not discuss retroactivity. See §
212.7(d). However, the regulation is not impermissibly retroactive because it
does not completely foreclose relief. Both prior and subsequent to promulgation
of the regulation, Pimentel could seek a waiver of inadmissibility under §
1182(h) and he would be subject to the Attorney General’s discretion regarding
whether to grant relief. Therefore, the new regulation “neither attaches a new
disability to past conduct nor upsets settled expectations.” Mejia, 499 F.3d at
998 (rejecting retroactivity challenge to § 212.7(d)).
III. CONCLUSION
For the above reasons, we DENY the petition for review.
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