Sergio Rojas-Maldonado v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION MAR 18 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGIO ROJAS-MALDONADO, No. 11-72233

Petitioner, Agency No. A038-087-424

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 9, 2015 San Francisco California

Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.

Sergio Rojas-Maldonado, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’s (hereinafter “the Board”) dismissal

of his appeal of an Immigration Judge’s (IJ) denial of his application for relief

under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c). An IJ

granted Rojas such relief in 1992, but the legacy Immigration and Naturalization

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Service appealed and, in 1997, following the passage of the Antiterrorism and

Effective Death Penalty Act…

MEMORANDUM *

Sergio Rojas-Maldonado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (hereinafter “the Board”) dismissal of his appeal of an Immigration Judge’s (IJ) denial of his application for relief under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182 (c). An IJ granted Rojas such relief in 1992, but the legacy Immigration and Naturalization Service appealed and, in 1997, following the passage of the Antiterrorism and Effective Death Penalty Act of 1996, the Board denied Rojas 212(c) relief on the ground that it had been eliminated by statute. A lengthy procedural history ensued, but, in 2008, the Board granted Rojas’s motion to reopen and remanded his case to an IJ for a determination of his eligibility “in the first instance.” On remand, the IJ, at a status conference, determined that Rojas was statutorily pretermitted from obtaining 212(c) relief and ordered him deported.

On appeal, the Board concluded that Rojas was ineligible for 212(c) relief. The Board noted that, to render his 1983 entry as a lawful permanent resident “lawful” for the purposes of accruing the seven years of unrelinquished lawful domicile…

dissenting:

I respectfully dissent. Had the Board denied Rojas-Maldonado relief under former INA § 212(c) solely because he committed fraud in obtaining a visa, I would join my colleagues in remanding this matter for application of the proper mens rea standard for fraud. It did not. The Board denied relief on a valid ground independent of the issue of fraud.

An applicant is only eligible for § 212(c) relief if he is “lawfully admitted,” Monet v. I.N.S., 791 F.2d 752, 753 (9th Cir.1986), and has accumulated seven years of lawful domicile in the United States. See United States v. Lopez-Velasquez, 629 F.3d 894, 898 (9th Cir.2010). Rojas was excludable when he entered the United States in 1983 under 8 U.S.C. § 1182 (a) (1982) because he had been déported in December 1977 and both entered the United States and applied for LPR status less than five years later without permission. As a result, independent of fraud, Rojas was not lawfully admitted and had not begun accruing years of lawful domicile for purposes of *567 § 212(c) relief. The Board correctly denied relief on this basis.

The majority remands this case because the Board’s holding “depended on its conclusion that [Rojas]…