Tienda-Ramos v. Gonzales

Full title: Carlos Enrique TIENDA-RAMOS, Petitioner, v. Alberto R. GONZALES, U.S…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 21, 2007

233 F. App'x 399 (5th Cir. 2007)

Opinion

No. 06-60350, Summary Calendar.

June 21, 2007.

J. Joseph Reina, Dallas, TX, for Petitioner.

Thomas Ward Hussey, Director, Saul Greenstein, U.S. Department of Justice Office of Immigration Litigation, John Clifford Cunningham, U.S. Department of Justice Civil Division Immigration Litigation, Washington, DC, Anne M. Estrada, U.S. Immigration Naturalization Service, Dallas, TX, Caryl G. Thompson, U.S. Immigration Naturalization Service District Directors Office, New Orleans, LA, for Respondent.

Alberto R. Gonzales, Washington, DC, pro se.

Petition for Review of an Order of the Board of Immigration Appeals (A79 549 429).

Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Tienda-Ramos, a native of Mexico illegally present in the United States, petitions for review of a final order of removal by the Board of Immigration Appeals ("BIA") affirming the decision of the Immigration Judge ("IJ"). Reviewing the BIA's conclusions of law de novo while granting Chevron ¹ deference to its reasonable interpretations of the Immigration and Naturalization Act ("INA"), Mortera-Cruz v. Gonzales, 409 F.3d 246, 250 (5th Cir. 2005), we deny review for the following reasons:

1 Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

1. Tienda-Ramos seeks adjustment of status from that of an illegal alien physically present in the United States to that of a lawful permanent resident under INA § 245(i), 8 U.S.C. § 1255(i). The BIA affirmed the IJ's denial of Tienda-Ramos's application for status adjustment because, having reentered the country without admission after prior unlawful presence for an aggregate period of more than a year, Tienda-Kamos is inadmissible under INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), a grounds of inadmissibility for which there is no waiver.

2. We have previously upheld as reasonable the BIA's interpretation that compliance with the requirements of INA § 245(i) does not cure inadmissibility under INA § 212(a)(9)(C)(i)(I). Morterar-Cruz, 409 F.3d at 256. We are aware that the Ninth Circuit holds that INA § 245(i) trumps inadmissibility stemming from the aggregate of one year of unlawful presence under INA § 212(a)(9)(C)(i)(I), ² but that is not the law in this circuit.

2 See Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir. 2006).

We have also previously rejected Tienda-Ramos's argument that permitting § 245(i) waiver of certain § 212 grounds of inadmissability while denying waiver for § 212(a)(9)(C)(i)(I) runs afoul of equal protection safeguards, finding one-violation aliens and multiple-violation aliens dissimilarly situated. Morterar-Cruz, 409 F.3d at 255-56.

PETITION DENIED.