Rivera-Peraza v. Holder , 684 F.3d 906 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL GERARDO RIVERA-PERAZA, 
Petitioner, No. 08-70455
v.
 Agency No.
A027-140-906
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 14, 2011—Pasadena, California
Filed June 29, 2012
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and James K. Singleton,
Senior District Judge.*
Opinion by Judge William A. Fletcher
*The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
7739
RIVERA-PERAZA v. HOLDER 7741
COUNSEL
Gregory Joseph Boult, GLECKMAN & SINGER, Los Ange-
les, California, for the petitioner.
Carmel Aileen Morgan, Elizabeth R. Chapman, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Petitioner Rafael Gerardo Rivera-Peraza (“Rivera”), a
native and citizen of Mexico, was convicted of armed robbery
with a firearm in California in 1981. After serving most of his
sentence, Rivera was deported in 1984. Since then, he has
twice reentered this country without inspection. The govern-
ment began a removal proceeding against Rivera in 2004.
Rivera admitted removability and sought adjustment of status
to lawful permanent resident. Because his 1981 conviction
rendered him inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), Rivera applied for a waiver of inadmis-
sibility under § 1182(h)(1)(A) and (B). See 8 U.S.C.
§ 1255(i)(2)(A) (requiring applicant for adjustment of status
to permanent resident to be admissible to the United States).
The Immigration Judge (“IJ”) denied Rivera’s application
for waiver of inadmissibility. The Board of Immigration
Appeals (“BIA”) affirmed, concluding that Rivera failed to
satisfy the hardship standard of 8 C.F.R. § 1212.7(d). Rivera
timely filed a petition for review. For the reasons set forth
7742 RIVERA-PERAZA v. HOLDER
below, we conclude that the BIA properly applied § 1212.7(d)
to Rivera. We therefore deny the petition.
I. Background
Rivera entered the United States in 1976 without inspec-
tion. Five years later, he was convicted of armed robbery
under California Penal Code §§ 211 and 12022. He received
a six-year sentence. In 1984, after serving almost four years,
he was transferred to Immigration and Naturalization Service
(“INS”) custody and deported to Mexico. Two days later, he
reentered the United States without inspection.
In 1989, still in the United States, Rivera met and married
Edelmira Herrera. The couple has three United States citizen
children: Edelmira Jr. born in 1990, Rafael Jr. born in 1992,
and Gabriela born in 1994. In 1994, the INS approved an I-
130 visa petition that Rivera’s wife, Edelmira, Sr., filed on his
behalf. In March 2003, Edelmira, Sr. became a naturalized
United States citizen.
In 1991, Rivera made a day trip to Mexico to visit his sick
mother. When he attempted to reenter the United States he
falsely claimed he was a United States citizen. The immigra-
tion officer refused admission. Rivera reentered the United
States two days later without inspection.
On November 2, 2004, Rivera was served with a Notice to
Appear and charged with removability for (i) being present in
the United States without having been admitted or paroled
and (ii) having been convicted of a crime involving moral tur-
pitude. Rivera sought relief from removal through an applica-
tion for adjustment of status under 8 U.S.C. § 1255(i).
Because his wife was a United States citizen who had already
obtained an I-130 visa for him, Rivera was potentially eligible
for adjustment. However, Rivera’s armed robbery conviction
made him inadmissible under § 1182(a)(2)(A)(i)(I) (convic-
tion of a crime of moral turpitude). Admissibility is a neces-
RIVERA-PERAZA v. HOLDER 7743
sary precondition for adjustment of status. 8 U.S.C.
§ 1255(i)(2)(A). Rivera therefore applied for a waiver of inad-
missibility under § 1182(h).
An applicant for adjustment of status with a criminal record
is eligible for a discretionary waiver of inadmissibility under
§ 1182(h) in two circumstances. First, the Attorney General
has discretion to grant a waiver if the conviction occurred
more than fifteen years prior to the application for adjustment
of status; if admission is not contrary to the welfare, safety
and security of the United States; and if the applicant has been
rehabilitated. § 1182(h)(1)(A). Second, the Attorney General
has discretion to grant a waiver if denial of admission would
result in extreme hardship to the applicant’s citizen or lawful
resident spouse, parents and children. § 1182(h)(1)(B). Rivera
sought a waiver under both provisions.
An Immigration Judge (“IJ”) conducted a hearing at which
Rivera, his wife, and his eldest daughter testified. The IJ
noted that Rivera needed the following to be eligible to adjust
status: (1) a waiver of inadmissibility under § 1182(h) for his
1981 armed robbery conviction, (2) permission under 8
C.F.R. § 1212.2 to return to the United States following
deportation; and (3) a waiver under 8 U.S.C. § 1182(i) for his
1991 false claim to citizenship. The IJ held that Rivera failed
to satisfy the first of these three requirements. He did not
address the other two.
If an applicant for a waiver of inadmissibility under
§ 1182(h) has committed a “violent or dangerous” crime, he
or she must satisfy a heightened standard set forth in 8 C.F.R.
§ 1212.7(d). Under that standard, the applicant must show
“extraordinary circumstances” such as “exceptional and
extremely unusual hardship.” Id. The IJ concluded that Rive-
ra’s 1981 armed robbery was a “violent or dangerous” crime
within the meaning of § 1212.7(d), and that Rivera did not
meet the “exceptional and extremely unusual hardship” stan-
7744 RIVERA-PERAZA v. HOLDER
dard. Without a waiver of inadmissibility, Rivera was statu-
torily ineligible for adjustment of status.
The BIA affirmed. It held that the “exceptional and
extremely unusual hardship” standard of § 1212.7(d) applies
to discretionary waivers sought under both 8 U.S.C.
§ 1182(h)(1)(A) (the rehabilitation waiver) and (h)(1)(B) (the
extreme hardship waiver). Under § 1212.7(d), the BIA con-
sidered the hardship to Rivera himself, as well as to his wife
and children, that would result from his inadmissibility. The
BIA concluded that the serious hardships to Rivera and his
relatives were “outweighed” by his “very serious criminal
activity” and “well-established disdain for the immigration
laws under which he now seeks shelter.”
Rivera filed a timely petition for review, contending that
the BIA made a mistake of law in applying the hardship stan-
dard of § 1212.7(d) to his waiver application.
II. Jurisdiction and Standard of Review
We have jurisdiction to review “constitutional claims or
questions of law raised upon a petition for review.” 8 U.S.C.
§ 1252(a)(2)(D). The government contends that Rivera chal-
lenges only the agency’s discretionary decision to deny his
waiver application, and that we therefore lack jurisdiction
over his petition under 8 U.S.C. § 1252(a)(2)(B)(I). However,
“this contention misconceives [Rivera’s] claim.” Mejia v.
Gonzales, 499 F.3d 991, 999 (9th Cir. 2007). Rivera does not
merely challenge the agency’s exercise of discretion. He
“contends specifically that the BIA used an erroneous legal
standard in [its] analysis.” Id. We have jurisdiction to review
that legal question.
“[W]e review de novo the BIA’s determination of questions
of law, except to the extent that deference is owed to its inter-
pretation of governing statutes or regulations.” Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006).
RIVERA-PERAZA v. HOLDER 7745
III. Analysis
Rivera argues that the heightened hardship standard estab-
lished by 8 C.F.R. § 1212.7(d) improperly raises the level of
requisite hardship under § 1182(h)(1)(B) from “extreme” to
“exceptional and extremely unusual.” He argues, further, that
§ 1212.7(d) cannot “logically apply” to waivers of inadmissi-
bility sought under § 1182(h)(1)(A) because that provision
deals with lapse of time, national safety and security, and
rehabilitation, rather than hardship. Finally, he argues that it
is illogical to apply the hardship standard of § 1212.7(d) to
waivers of admissibility sought under § 1182(h)(1)(B)
because the statutory provision contains restrictive language
identifying those who must suffer “extreme hardship,”
whereas § 1212.7(d) does not contain comparably restrictive
language. Compare § 1182(h)(1)(B) (requiring that an alien
demonstrate “extreme hardship to the United States citizen or
lawfully resident spouse, parent, son, or daughter of such
alien”), with § 1212.7(d) (requiring that “an alien clearly dem-
onstrate[ ] that the denial of . . . admission . . . would result
in exceptional and unusual hardship”).
[1] Rivera’s arguments are largely foreclosed by our deci-
sion in Mejia, 499 F.3d 991, in which we expressly rejected
the contention that § 1212.7(d) altered or superseded the hard-
ship standard of § 1182(h)(1)(B). We held that § 1212.7(d)
requires that “extraordinary circumstances,” such as “excep-
tional and extremely unusual hardship,” exist for someone
convicted of a “violent or dangerous crime,” whether a waiver
of inadmissibility is sought under § 1182(h)(1)(A) (the reha-
bilitation waiver) or (h)(1)(B) (the hardship waiver). Id. at
995. We wrote:
The regulation does not alter or supercede the “ex-
treme hardship” standard. Rather, the regulation sup-
plements and gives definition to the standard to be
applied in the cases of individuals who have commit-
ted violent or dangerous crimes. The Attorney Gen-
7746 RIVERA-PERAZA v. HOLDER
eral, in the exercise of his discretion, suggests that
the equities disfavor, although do not preclude, relief
in this circumstance. Given Congress’s broad grant
of discretion, this approach is not inconsistent with
the statute or the Attorney General’s authority.
Id. at 996.
In reaching our decision in Mejia, we relied in part on Fed-
eral Register commentary accompanying the regulation. Id. at
995 (citing 67 Fed. Reg. 78675 (Dec. 26, 2002)). In that com-
mentary, the Attorney General rejected the suggestion that the
regulation altered the hardship requirement in
§ 1182(h)(1)(B), noting that the hardship standard of
§ 1212.7(d) “does not relate to the threshold eligibility
requirement of ‘extreme hardship’ ” in § 1182(h)(1)(B). 67
Fed. Reg. at 78677. Rather, the Attorney General wrote, the
regulation “governs only the exercise of discretion . . . after
the alien has met the threshold requirements.” Id. (emphasis
added).
[2] Because the hardship standard of § 1212.7(d) operates
separately from the hardship standard of § 1182(h)(1)(B), it is
not “illogical” that hardship under the two standards is evalu-
ated with respect to differently defined groups of people. Sec-
tion 1182(h)(1)(B) directs the agency to consider hardship to
only the alien’s lawfully admitted or citizen spouse, parents
and children. Hardship to the alien himself or herself is irrele-
vant. By contrast, § 1212.7(d) requires that “an alien clearly
demonstrate[ ] . . . exceptional and extremely unusual hard-
ship,” without limiting the hardship to specified people. The
government argues to us that § 1212.7(d) properly directs the
agency to consider hardship to the alien as well as to his or
her relatives. We agree with the government. As pointed out
by the government, the BIA did precisely what it was directed
to do. The BIA recounted in its opinion that it considered “the
serious hardships likely to befall the respondent and his rela-
tives in the event of the respondent’s removal.”
RIVERA-PERAZA v. HOLDER 7747
Conclusion
As we made clear in Mejia, the hardship standard of 8
C.F.R. § 1212.7(d) applies to those who have committed “vio-
lent or dangerous crimes” and who seek a waiver of inadmis-
sibility under 8 U.S.C. § 1182(h)(1). As we make clear today,
§ 1212.7(d) directs the agency to consider hardship to the
alien and to his or her relatives.
PETITION FOR REVIEW DENIED.