Jimenez-Aguilar v. Gonzales , 168 F. App'x 552 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-60446
Summary Calendar
TOMAS JIMENEZ-AGUILAR.
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
BIA No. A41 632 923
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges
PER CURIAM:*
Petitioner Tomas Jimenez-Aguilar, a native and citizen of
Mexico who was granted Legal Permanent Resident status in the
United States in February 1988, challenges the decision of the
Board of Immigration Appeals (BIA) finding that he is legally
ineligible for relief under § 212(c) of the Immigration and
Nationality Act (INA). On October 28, 1988, after a jury trial,
Petitioner was convicted of indecency with a child and was
sentenced to ten years imprisonment, which was suspended with the
imposition of ten years probation. In 2004, Petitioner was served
*
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this opinion should not be published and is not precedent except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.
No. 05-60446
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with a Notice to Appear that alleged removability based on
Petitioner’s conviction of a crime involving moral turpitude,
pursuant to §212(a)(2)(A)(i)(I) of the INA. On July 8, 2004, after
several hearings, the Immigration Judge (IJ) determined that
Petitioner was eligible for waiver of the ground of admissibility
under former INA § 212(c) and granted relief.1 On appeal, the BIA
held that, pursuant to 8 C.F.R. §§ 1003.44(b)(2) and
1212.3(h)(2004), which were amended and revised after the IJ’s
decision, Petitioner is ineligible for § 212(c) relief.
The Court reviews questions of law de novo. Silwany-Rodriguez
v. INA, 975 F.2d 1157, 1160 (5th Cir. 1992). However, this review
“‘is limited,’ and the Court ‘accord[s] deference to the [BIA]’s
interpretation of immigration statutes unless there are compelling
indications that the [BIA]’s interpretation is wrong.’” Id., citing
Campos-Guardado v. INS, 809 F.2d 285, 289 (5th Cir. 1987). “On
review, an agency’s construction of its own regulations is
controlling unless it is plainly erroneous or inconsistent with the
regulation.” Id., citing Udall v. Tallman, 380 U.S. 1, 16-17
(1965).
8 C.F.R. 1212.3(h) clearly provides that an alien seeking §
212(c) relief must have pleaded guilty or nolo contendere to the
crime for which they were convicted. In the instant case,
1
On April 1, 1997, INA §212(c) was repealed by the
Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, §304(b), 110 Stat. 3009-546, -597
(1996).
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Petitioner did not plead guilty, but rather, was convicted after a
jury trial. Therefore, there are no compelling indications that
the BIA was wrong to find that the regulations precluded § 212(c)
relief for Petitioner. Petitioner has not challenged the BIA’s
construction of the regulation, and the constitutionality of the
regulation is not before the Court. Thus, the Court will not
reverse the BIA’s decision to apply the relevant regulatory
provisions to Petitioner’s case.
The petition for review is DENIED.