Mejia v. Gonzales

• Citation: 499 F.3d 991
• Decision Date: 24 August 2007
• Docket Number: No. 04-76214.,No. 04-74001.,04-74001.,04-76214.
• Parties: Jorge MEJIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. Jorge Mejia, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

499 F.3d 991

Jorge MEJIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

Jorge Mejia, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.

No. 04-74001.

No. 04-76214.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2007.

Filed August 24, 2007.

Raul E. Godinez, Law Office of Raul E. Godinez, Los Angeles, CA, for the petitioner.

Peter Keisler, Assistant Attorney General, Department of Justice, and Francesco Isgro and Papu Sandu, Office of Immigration Litigation, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A76-613-262, A76-613-262.

Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and RONALD M. WHYTE,^* District Judge.

McKEOWN, Circuit Judge:

In late 2002, the Attorney General promulgated a rule designed to guide Immigration Judges ("IJs") in deciding whether to grant waivers of inadmissibility to the United States based on certain criminal grounds. The regulation provides that in cases where individuals have committed "violent or dangerous crimes," the Attorney General will not exercise his discretion to grant waivers under 8 U.S.C. § 1182(h) (known as § 212(h) relief) unless the individual can show "exceptional and extremely unusual hardship." 8 C.F.R. § 212.7(d).

In this appeal we consider, among other issues, Jorge Humberto Mejia's ("Mejia") challenge to the application of this regulation to his removal proceedings. We hold that adoption of 8 C.F.R. § 212.7(d) is a permissible exercise of the Attorney General's authority and the regulation may be applied to convictions that became final before the effective date of the regulation.

BACKGROUND

Mejia, a native and citizen of El Salvador, entered the United States without inspection in the early 1980s. In 1988, he married Angela Mejia, a United States citizen, and together they have three daughters, two of whom are U.S. citizens. Angela Mejia also has a daughter from a previous relationship, Gloria.

In 1989, Mejia was convicted of violating provisions of the California Penal Code that prohibit child molestation and commission of lewd and lascivious acts upon a child. See Cal.Penal Code § 288(a), (c). These convictions were based on Mejia's repeated molestation of his step-daughter, Gloria, beginning when Gloria was twelve years old and continuing for approximately three and a half years. This conduct included slapping her, massaging her breasts, and fondling her genitals. Mejia pleaded guilty and served seven months in jail.

In August 2000, the Immigration and Naturalization Service ("INS") served Mejia with a Notice to Appear, charging him as removable in violation of 8 U.S.C. § 1182(a)(2)(A)(i)(I)¹ and 8 U.S.C. § 1182(a)(6)(A)(i).² At his initial hearing, before the IJ, Mejia conceded removability and asked for time to apply for an adjustment of status and a waiver of inadmissibility under Immigration and Nationality Act ("INA") § 212(h), 8 U.S.C. § 1182(h).³

In April 2003, the IJ conducted a hearing on Mejia's § 212(h) application. The IJ heard testimony from Mejia, his brother, his wife, and two of his daughters, but not from his stepdaughter Gloria, who declined to appear. The IJ denied Mejia's petition for a § 212(h) waiver on the merits. In denying relief, the IJ held that the standard set forth in Matter of Jean, 23 I. & N. Dec. 373 (BIA 2002), and later codified at 8 C.F.R. § 212.7(d), governed Mejia's application.⁴ Section 212.7(d) states that, in general, the Attorney General will not exercise his discretion to grant a § 212(h) waiver in a case involving a "violent or dangerous crime[ ]" unless the applicant shows "exceptional and extremely unusual hardship." 8 C.F.R. § 212.7(d). Applying this standard, the IJ held that Mejia failed to meet the high burden of exceptional and extremely unusual hardship. The IJ acknowledged that this was a "very difficult" case but concluded that denial was appropriate because "the seriousness of the crime, even though he has demonstrated rehabilitation, is just virtually inexcusable." The IJ also noted other factors that weighed against waiver, including the circumstances of the crime, Mejia's denial of the events when confronted, and the fact that Gloria did not testify on his behalf.

The BIA adopted and affirmed the IJ's decision, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). The BIA also observed that all of Mejia's convictions "constitute[d] crimes of violence," and held that Mejia failed to show exceptional or extremely unusual hardship.

Mejia filed a timely motion to reopen with the BIA, which was denied. Mejia petitions for review of both the denial of § 212(h) relief and his motion to reopen.⁵

ANALYSIS

I. ATTORNEY GENERAL'S AUTHORITY TO PROMULGATE 8 C.F.R. § 212.7(d)

The first question we consider is whether the Attorney General exceeded his statutory authority in adopting 8 C.F.R. § 212.7(d), the regulation that establishes a heightened burden under § 212(h) for individuals who have committed violent or dangerous crimes. Section 212(h)(1) states that the Attorney General may, "in his discretion" waive the inadmissibility of certain criminal aliens if "it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien." 8 U.S.C. § 1182(h)(1)(B). This waiver may be granted if "the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status." Id. § 1182(h)(2).

In 2003, the Attorney General adopted 8 C.F.R. § 212.7(d), which states:

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the [Immigration and Nationality] Act (8 U.S.C. § 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the [Immigration and Nationality] Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as ... cases in which an alien clearly demonstrates that the denial of [relief] would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

In issuing the regulation, the Attorney General emphasized that "8 C.F.R. § 212.7(d) governs only the exercise of discretion under section 212(h)(2) of the Act, after the alien has met the threshold requirement of section 212(h)(1) of the Act." 67 Fed.Reg. at 78,677.

Mejia argues that there is a disconnect between the language of the statute — "extreme hardship" — and the burden imposed by the regulation — an "exceptional and extremely unusual" hardship. His suggestion that the regulation exceeds the bounds of the Attorney General's authority misconceives the statute as a whole and the discretion Congress has entrusted to the Attorney General in this arena.

We apply the "familiar Chevron two-step approach" to determine whether 8 C.F.R. § 212.7(d) is valid. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 (9th Cir.2007) (en banc) (applying Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to determine whether an immigration regulation was ultra vires). In the first step of the Chevron inquiry, we ask "whether Congress has directly spoken to the precise question at issue," Chevron, 467 U.S. at 842, 104 S.Ct. 2778 — here, whether Congress has established the standard that the Attorney General may use in exercising his discretion to grant § 212(h) relief. In fact, Congress has not spoken on this issue as the statute does not address any standard for exercise of his discretion under § 212(h)(2).

Therefore, we assess "whether the agency's [regulation] is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778; see also Morales-Izquierdo, 486 F.3d at 492. "[T]he agency construction [need not be] the only one it permissibly could have adopted ..., or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778.

The regulation speaks only to the exercise of discretion under § 212(h)(2), not to the threshold determination of eligibility under § 212(h)(1). The Attorney General has not changed or altered the statutory "extreme hardship" standard. Instead, he has promulgated a regulation to guide IJs in the way they exercise their relatively unfettered grant of discretion after the statutory requirements are met. Cf. 8 U.S.C. § 1252(a)(2)(B)(i) (insulating from judicial review discretionary determinations under 8 U.S.C. § 1182(h)).

The regulation does not alter or supercede the "extreme hardship" standard. Rather, the regulation supplements and gives definition to the standard to be applied in the cases of individuals who have committed violent or dangerous crimes. The Attorney General, 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.

As we noted in Ayala-Chavez v. INS, "[C]ourts have always interpreted broadly the discretionary authority of the Attorney General to grant or deny waiver of deportation .... Inherent in this discretion is the authority of the Attorney General and his subordinates to establish...