Rodriguez v. Mukasey , 298 F. App'x 306 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2008
No. 07-60680
Summary Calendar Charles R. Fulbruge III
Clerk
MIRNA LIZETH RODRIGUEZ
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 328 626
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Mexican citizen Mirna Lizeth Rodriguez petitions for review of the decision
of the Board of Immigration Appeals (BIA) affirming an order of removal entered
by the Immigration Judge (IJ). Rodriguez contends that the BIA and IJ erred
by refusing to afford her the benefit of 8 U.S.C. § 1182(a)(9)(B)(iii)(I), which
excludes time spent in the United States by a minor from the calculation of a
period of unlawful presence.
*
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should not be published and is not precedent except under the limited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. 07-60680
The plain language of § 1182(a)(9)(B)(iii)(I) limits its application to
§ 1182(a)(9)(B)(i). Cf. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242
(1989) (looking first to plain language in interpreting statute). Rodriguez was
deemed inadmissible under another provision, § 1182(a)(9)(C), which sets forth
more culpable conduct than does subsection (a)(9)(B). See Mortera-Cruz v.
Gonzales, 409 F.3d 246, 255-56 (5th Cir. 2005) (distinguishing subsections).
Further, § 1182(a)(9)(C) has its own exception and waiver provisions, which do
not include any exception for minors. See § 1182(a)(9)(C)(ii) & (iii). The
inclusion of some waivers implies the exclusion of others. See Thompson v.
Goetzmann, 337 F.3d 489, 499 (5th Cir. 2003).
In addition, the Ninth Circuit has held that, although “unlawful presence”
has the same general meaning in subsections (a)(9)(B) and (a)(9)(C), there is no
presumption “that the waiver provisions are also incorporated, particularly
where they are contained in separate provisions and not within the definition
itself.” Acosta v. Gonzales, 439 F.3d 550, 557 (9th Cir. 2006) (holding that
“hardship” waiver of § 1182(a)(9)(B) was not incorporated into § 1182(a)(9)(C)).
Rodriguez was properly held to be removable under § 1182(a)(9)(C). Her
petition for review is DENIED.
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