378 F.3d 1094 (9th Cir. 2004), 02-73951, Alvarez-Garcia v. Ashcroft

Docket Nº:02-73951.
Citation:378 F.3d 1094
Party Name:Zoila ALVAREZ-GARCIA, Petitioner, v. John ASHCROFT, Attorney General,[*] Respondent.
Case Date:August 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1094

378 F.3d 1094 (9th Cir. 2004)

Zoila ALVAREZ-GARCIA, Petitioner,


John ASHCROFT, Attorney General,[*] Respondent.

No. 02-73951.

United States Court of Appeals, Ninth Circuit

August 10, 2004

Argued and Submitted April 15, 2004.

Page 1095

Martin R. Guajardo, San Francisco, CA, for the petitioner.

Jennifer Paisner, Linda S. Wernery, Department of Justice, Washington, DC, for the respondent.

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

Before WALLACE, KOZINSKI, and THOMAS, Circuit Judges.

WALLACE, Senior Circuit Judge:

Zoila Alvarez-Garcia petitions for review of the Board of Immigration Appeals' (Board) decision to affirm, without opinion, an Immigration Judge's (IJ) exclusion and deportation order. We follow the transitional rules for judicial review under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546, since immigration proceedings were initiated against Alvarez-Garcia before April 1, 1997, and her final order of exclusion was issued after October 31, 1996. Melkonian v. Ashcroft, 320 F.3d 1061, 1064 n. 1 (9th Cir. 2003). We thus have jurisdiction pursuant to 8 U.S.C. § 1105a (1996), as amended by IIRIRA § 309(c), 110 Stat. at 3009-625 to 3009-627, and we deny Alvarez-Garcia's petition.


Alvarez-Garcia initially entered the United States without inspection in 1974. Immigration and Naturalization Service (INS) officers arrested her in 1979, and she was subsequently granted a short period of time to depart voluntarily. After this time expired without her departure, a deportation warrant was issued in her name. Alvarez-Garcia's next encounter with immigration officials occurred on December 20, 1994, when federal agents detained her at the San Francisco International Airport for attempting to enter the United States with a false birth certificate bearing the name "Sylvia Soto." Alvarez-Garcia pled guilty on July 5, 1995, to the ensuing criminal charge for possession of a false identification document with intent to defraud, a misdemeanor.

In the meantime, the INS had charged Alvarez-Garcia as excludable on four grounds and commenced exclusion proceedings. The next day, Alvarez-Garcia wed Edward Soto, a United States citizen with whom she claimed to have lived since 1985. The prospect of exclusion from the United States apparently prompted the marriage; by legalizing her relationship with Soto, Alvarez-Garcia might have gained lawful permanent residence. Soto and Alvarez-Garcia took the next steps toward that end on March 21, 1995: Soto petitioned for a relative immigrant visa on Alvarez-Garcia's behalf, and Alvarez-Garcia, in accordance with the governing regulations,

Page 1096

simultaneously applied to the INS district director for adjustment of status. The district director approved Soto's petition on November 13, 1995, but stated that he had not yet made a decision on Alvarez-Garcia's pending application. To remove remaining legal obstacles to permanent residency, Alvarez-Garcia sought a waiver of one ground of excludability--her fraud offense--and requested permission to reapply for admission into the United States after removal.

Alvarez-Garcia did not contest the INS's charges at her initial exclusion hearing in 1996. Instead, she expressed her intention to proceed with her adjustment of status application and to file the above-mentioned documents. The IJ continued Alvarez-Garcia's case multiple times over the next four years, ostensibly to allow her time to secure this relief.

The district director denied Alvarez-Garcia permission to reapply for admission on March 30, 2000. A week later (and the same day the INS served the denial on Alvarez-Garcia's counsel), Alvarez-Garcia appeared in front of the IJ for the first time since her initial exclusion hearing. She again conceded excludability, but requested that the IJ review de novo her application for adjustment of status. The IJ declined on various grounds. Most importantly, the IJ concluded that she lacked jurisdiction to adjust the status of an alien, such as Alvarez Garcia, in exclusion proceedings. Alvarez-Garcia challenged this proposition on equal protection grounds, essentially pointing to the IJ's authority to consider the applications (and corresponding requests for waiver and permission to reapply) of those subject to deportation and arguing that there is no rational basis to draw a distinction between excludable and deportable aliens. The IJ refused to address Alvarez-Garcia's contention because constitutional arguments fell outside her jurisdiction.

Alvarez-Garcia repeated her equal protection claim on appeal to the Board and, following the Board's affirmance without opinion, to us in her petition for review.


Because the Board affirmed the IJ without opinion, we review the IJ's decision "as though it were the Board's." Wang v. INS, 352 F.3d 1250, 1253 (9th Cir. 2003). We review de novo purely legal questions, Jahed v. INS, 356 F.3d 991, 997 (9th Cir. 2004), as well as due process challenges, Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003).

Alvarez-Garcia's equal protection argument centers on the treatment she received by virtue of being an excludable, rather than deportable, alien. Since she was in exclusion proceedings, INS regulations compelled Alvarez-Garcia to submit her adjustment of status application to "the[INS district] director having jurisdiction over ... her place of residence." 8 C.F.R. § 245.2(a)(1) (2000) (now codified at 8 C.F.R. § 1245.2(a)(1)). "[T]he director ... considering the application for adjustment of status" likewise was the proper recipient of Alvarez-Garcia's request to waive the grounds on which she was excludable, id. § 212.7(a)(1)(ii) (now codified at 8 C.F.R. § 1212.7(a)(1)(ii)), and her application...

To continue reading