548 F.3d 1248 (9th Cir. 2008), 06-72956, Aguilera-Montero v. Mukasey

Docket Nº:06-72956.
Citation:548 F.3d 1248
Party Name:Pedro AGUILERA-MONTERO, Petitioner, v. Michael B. MUKASEY, Respondent.
Case Date:December 01, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1248

548 F.3d 1248 (9th Cir. 2008)

Pedro AGUILERA-MONTERO, Petitioner,


Michael B. MUKASEY, Respondent.

No. 06-72956.

United States Court of Appeals, Ninth Circuit.

December 1, 2008

Argued and Submitted May 8, 2008.

Page 1249

Russell W. Pritchett, Pritchett & Jacobson, Bellingham, WA, for petitioner-appellant Pedro Aguilera-Montero.

M. JocelynLopez Wright and Kristin K. Edison (argued), Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for respondent-appellee Michael Mukasey.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A29-677-298.

Before: SUSAN P. GRABER and JOHNNIE B. RAWLINSON, Circuit Judges, and OTIS D. WRIGHT II,[*] District Judge.

RAWLINSON, Circuit Judge:

Appellant Pedro Aguilera-Montero (Aguilera-Montero) petitions for review of the Board of Immigration Appeals' (BIA) dismissal of his appeal of a denial of his application for adjustment of status. Aguilera-Montero asserts that he is entitled to a waiver of deportability pursuant to 8 U.S.C. § 1227 because of a full and unconditional state pardon.

Additionally, Aguilera-Montero maintains that the availability of a pardon-based waiver pursuant to 8 U.S.C. § 1227 violates the equal protection rights of inadmissible aliens, who are not entitled to such a waiver under 8 U.S.C. § 1182.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and we deny the petition for review.


Aguilera-Montero has a long history of illegal presence in this country. His original illegal entry was in September, 1986. On August 17, 1991, he was granted voluntary departure, but failed to depart. On June 19, 1992, he was apprehended and became the subject of deportation proceedings. On August 25, 1992, an immigration judge (IJ) granted him voluntary departure, and he again failed to depart. On February 20, 1993, he was deported, and he re-entered illegally on March 1, 1993.

Page 1250

On October 13, 1993, deportation proceedings were commenced against Aguilera-Montero. On January 26, 1994, he was granted voluntary departure and failed to depart yet again. He was “ encountered by the U.S. Border Patrol on January 3, 1995, while working illegally." Although he was deported on January 11, 1995, Aguilera-Montero re-entered the country illegally “ on or about April 15, 1995."

On February 4, 1993, Aguilera-Montero pled guilty to unlawful possession of cocaine. On April 30, 2001, he filed an application for adjustment of status to permanent resident due to his marriage to a United States citizen. Aguilera-Montero's application was denied by the District Director, Citizenship and Immigration Services, Department of Homeland Security, for two reasons: 1) Aguilera-Montero was inadmissible for status as a permanent resident due to his second removal within a ten-year period; and 2) Aguilera-Montero was inadmissible for status as a permanent resident due to his conviction for violating a law relating to a controlled substance, i.e., his 1993 guilty plea to unlawful possession of cocaine.1

The denial included a Notice to Appear before an IJ for removal proceedings. Aguilera-Montero was charged with being subject to removal pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii) (providing for removal of an inadmissible alien who has been ordered removed more than once and who seeks admission within twenty years of the last removal), and pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing for removal of an inadmissible alien who has been convicted of a crime relating to a controlled substance).

Prior to his removal hearing, the Governor of the State of Washington granted Aguilera-Montero a “ Full and Unconditional Pardon." At the removal hearing, Aguilera-Montero conceded removability. During the continued removal proceedings, Aguilera-Montero requested a waiver of the controlled substance inadmissibility charge, which would permit him to adjust his status to that of a lawful permanent resident. The IJ rejected Aguilera-Montero's request for a waiver, reasoning that although a waiver is available for aliens who have been admitted into this country, no comparable waiver is available for aliens who have not been admitted into the country.

The BIA affirmed the IJ's ruling, reiterating that 8 U.S.C. § 1227(a)(2)(A)(v)“ expressly provides that certain enumerated criminal grounds of deportability become inapplicable where the alien receives a full and unconditional executive pardon ... but section 212 of the Act [8 U.S.C. § 1182] contains no equivalent waiver provision pertaining to the criminal grounds of inadmissibility. " (second emphasis in the original).

Aguilera-Montero filed a timely petition for review of the BIA decision.


“ [W]hen the BIA conducts a de novo review and issues its own decision, we review the BIA's decision rather than the IJ's." Urzua Covarrubias v. Gonzales, 487 F.3d 742, 747 n. 2 (9th Cir.2007) (citation omitted).

“ We review constitutional and legal issues de novo." Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir.2007) (citations omitted).

Page 1251


A. Aguilera-Montero's State Pardon As Removing The Legal Consequences of His Controlled Substance Conviction

Relying on Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866), and its progeny,2 Aguilera-Montero asserts that a state pardon, like a Presidential pardon, obviates the legal consequences of his conviction.

Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)(2006), “ any alien convicted of, or who admits having committed, ... a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ..., is inadmissible."

In contrast, 8 U.S.C. § 1227, applicable to deportable aliens, explicitly provides a waiver of deportability to aliens who committed crimes of moral turpitude, had multiple criminal convictions, committed an aggravated felony, or engaged in high speed flight from an immigration checkpoint “ if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States." 8 U.S.C. § 1227(a)(2)(A)(vi)(2006).

Contrary to Aguilera-Montero's argument that a state pardon removes all legal consequences of a conviction, Aguilera-Montero's state pardon does not entitle him to a waiver that does not exist in 8 U.S.C. § 1182(a)(2)(A)(i)(II). In Yuen v. I.N.S., 406 F.2d 499, 500 (9th Cir.1969), we addressed the effect of a state pardon on statutory waivers of deportation. The petitioner, who was convicted of a state narcotics offense, asserted that his full and unconditional pardon entitled him to...

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