     Case: 09-60624     Document: 00511134529          Page: 1    Date Filed: 06/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 7, 2010

                                       No. 09-60624                         Lyle W. Cayce
                                                                                 Clerk

ALFREDO GARZA GUERRA, also known as Alfredo Garza–Guerra,

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent




                          Petition for Review of an Order of
                          the Board of Immigration Appeals
                                BIA No. A017 896 860


Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
PER CURIAM:*
        Alfredo Garza Guerra petitions for review of an order of the Board of
Immigration Appeals, vacating a grant of waiver of inadmissibility under former
§ 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed
1996). As we lack jurisdiction to review the Board’s order, we DISMISS the
petition


.

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                         No. 09-60624

                                    I. BACKGROUND
       Alfredo Garza Guerra (Garza), a native and citizen of Mexico, is a lawful
permanent resident (LPR) of the United States. Garza has lived in the United
States since 1967, and most of his family members are U.S. citizens, including
his wife and three daughters. Garza has two convictions under Texas law. In
1982, he pleaded no contest to aggravated sexual assault of a child, was
sentenced to five years of imprisonment, and served six months. He pleaded
guilty to criminal mischief for slashing tires in 1983, for which he was sentenced
to 60 days. Garza contends he was wrongly convicted of both crimes. He denies
any sexual contact with the victim in the 1982 conviction and contends that he
only pleaded no contest on advice of his defense attorney, who told him the
prosecution would put the five-year-old victim on the stand and that the jury
would believe the victim. As to the criminal mischief conviction, Garza contends
that a friend slashed his ex-girlfriend’s tires, that Garza was merely in the
wrong place at the wrong time, and that he pleaded guilty and agreed to pay for
the tires because he was confused.
       In 2006, Garza sought entry to the United States at a port of entry.
Because of Garza’s prior convictions, the Department of Homeland Security
(DHS) charged Garza with removability under §§ 212(a)(2)(A)(i)(I) and (a)(2)(B)
of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182. Before an
Immigration Judge (IJ), Garza conceded both charges of removability but moved
for a waiver of inadmissibility under former § 212(c) of the INA, 8 U.S.C. § 1182
(repealed 1996).1       The IJ conducted a balancing test between positive and


       1
         Section 212(c) offered a discretionary waiver of inadmissibility to LPRs who have
established at least seven years of unrelinquished domicile in the U.S. and who would
otherwise be inadmissible due to convictions. Section 212(c) was repealed in 1996, by the
passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). However, in INS v. St. Cyr, the Supreme
Court held that § 212(c) discretionary relief “remains available for aliens . . . whose convictions

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negative factors, including Garza’s prior convictions. The IJ noted a number of
positive factors leaning in Garza’s favor, including his long-time legal residence,
his U.S. citizen family members, his steady employment history, and his
ownership of property. The IJ also discussed the “very serious” conviction for
aggravated sexual assault of a child, noting that Garza did not demonstrate
rehabilitation, as he continued to deny culpability for the underlying offense.
However, the IJ was swayed by the facts that the conviction stemmed from
conduct that occurred when Garza was only 17 years old, more than 25 years
before these proceedings commenced, and that Garza did not have any other
criminal history involving sexual offenses. The IJ exercised his discretion to
grant Garza’s § 212(c) motion for waiver of inadmissibility.
       The DHS appealed the IJ’s decision to the BIA, which conducted a de novo
review of the grant of waiver. While the BIA acknowledged “favorable factors
in the record, including [Garza’s] family ties in the United States,” it determined
that the favorable factors were “greatly outweighed by the adverse ones, namely
[Garza’s criminal convictions]” and his failure to accept responsibility for his
criminal conduct. The BIA noted in particular the young age of the victim
involved.     Finding that Garza’s “criminal and sexually predatory offenses”
greatly outweighed the equities in his favor, the BIA vacated the IJ’s grant of a
§ 212(c) waiver.
       Garza filed a timely petition for review in this court. Garza challenges the
BIA’s decision on the grounds that the BIA improperly conducted a de novo
review of the IJ’s decision and failed to conduct a balancing test. The DHS


were obtained through plea agreements and who, notwithstanding those convictions, would
have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” 533
U.S. 289, 326 (2001). While the language “of § 212(c) would appear to apply only to the
admission of returning aliens, it [has been] interpreted by the BIA and the courts to allow
certain removable aliens to apply for a discretionary waiver.” Marquez–Marquez v. Gonzales,
455 F.3d 548, 551 n.8 (5th Cir. 2006). As Garza’s convictions date from 1982 and 1983, he
remains eligible for § 212(c) discretionary relief.

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contends that we do not have jurisdiction to hear Garza’s petition, as it merely
questions a discretionary decision of the BIA and fails to raise a legal question.
                                  II. DISCUSSION
       We     have     jurisdiction     to    determine        our    own    jurisdiction.
Marquez–Marquez, 455 F.3d at 554. Our jurisdiction to review final orders of
removal is limited.       Id. at 553–54.         The IIRIRA strips federal courts of
“jurisdiction to review any final order of removal against an alien who is
removable” because he committed criminal offenses covered under § 1182(a)(2).2
8 U.S.C. § 1252(a)(2)(C). Additionally, the IIRIRA divests federal courts of
jurisdiction to hear challenges to discretionary decisions of the BIA, including
the denial of § 212(c) relief. See 8 U.S.C. § 1252(a)(2)(B); Delgado–Reynua v.
Gonzales, 450 F.3d 596, 599–600 (5th Cir. 2006).                     However, we retain
jurisdiction to hear “constitutional claims or questions of law” raised by a
petition for review, despite the two jurisdiction-stripping provisions cited above.
8 U.S.C. § 1252(a)(2)(D); see also Hadwani v. Gonzales, 445 F.3d 798, 800 (5th
Cir. 2006) (per curiam). Because Garza concedes that he is removable under
both §§ 1182(a)(2)(A)(i)(I) (moral turpitude) and 1182(a)(2)(B) (multiple
convictions), §§ 1252(a)(2)(B) and (C) deprive us of jurisdiction to review Garza’s
claim that the BIA erred in determining, in the exercise of discretion, that Garza
did not merit § 212(c) relief, unless his challenge presents a constitutional claim
or a question of law for purposes of § 1252(a)(2)(D). Cf. Marquez–Marquez, 455
F.3d at 560–61.
       Garza argues that the BIA abused its discretion by improperly applying
a de novo standard of review instead of reviewing for abuse of discretion. He


       2
         Under the IIRIRA, an alien who has been convicted of a crime of moral turpitude or
of two or more offenses for which the aggregate sentence is five years or more in prison is
inadmissible. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I) (moral turpitude), 1182(a)(2)(B) (multiple
convictions). Garza conceded before the IJ that he was indeed removable under both of these
subsections.

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contends that the application of an allegedly improper standard of review
constitutes a question of law, and therefore we have jurisdiction to consider this
claim.3 However, our circuit squarely addressed this issue in Delgado–Reynua,
450 F.3d at 599–600. There, the petitioner argued that we had jurisdiction to
review his challenge to the BIA’s discretionary denial of § 212(c) relief because
“the BIA improperly conducted de novo review, rather than reviewing the IJ’s
decision for clear error.” Id. at 599. We read this argument as an attempt to
“phrase[ ] his argument in legal terms” in order “to cloak a request for review of
the BIA’s discretionary decision, which is not a question of law.” Id. at 599–600.
Like the petitioner in Delgado–Reynua, Garza attempts to veil the argument
that the BIA abused its discretion—which is clearly outside our jurisdiction—in
terms of a legal question.           Accordingly, we lack jurisdiction to hear this
argument.4
       In his brief, Garza initially asserts that the BIA did not conduct a
balancing test. However, his argument on this point focuses exclusively on the
BIA’s alleged failure to list all of the evidence presented in Garza’s favor. To the
extent that Garza argues that the BIA did not consider all the relevant factors
in favor of granting waiver of inadmissibility, this argument is also outside of

       3
         To support this argument, Garza cites to a number of Fifth Circuit cases where we
conducted abuse of discretion review of § 212(c) decisions, including Villarreal–San Miguel v.
INS, 975 F.2d 248 (5th Cir. 1992), Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), Ashby v. INS,
961 F.2d 555 (5th Cir. 1992), Diaz–Resendez v. INS, 960 F.2d 493 (5th Cir. 1992),
Luciano–Vincente v. INS, 786 F.2d 706 (5th Cir. 1986) (per curiam), and Osuchukwu v. INS,
744 F.2d 1136 (5th Cir. 1984). However, these cases pre-date the enactment of the
jurisdiction-stripping provisions of the IIRIRA enacted in 1996; therefore, Garza’s reliance is
misplaced.
       4
         Even if we had jurisdiction to consider Garza’s argument that the BIA applied an
incorrect standard of review, that argument would fail on the merits, as the administrative
regulations that govern the BIA state that “[t]he [BIA] may review questions of law, discretion,
and judgment and all other issues [other than findings of fact] in appeals from decisions of
[IJs] de novo.” 8 C.F.R. § 1003.1(d)(3)(ii). As the decision whether to grant waiver of
inadmissibility under § 212(c) is discretionary, see St. Cyr, 533 U.S. at 294–95, the BIA did not
err in conducting a de novo review of the IJ’s decision.

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our jurisdiction. Cf. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007) (holding
that argument that IJ “did not consider all of the relevant factors” in a balancing
inquiry did not pose a constitutional claim or question of law and therefore fell
outside our jurisdiction).
                              III. CONCLUSION
      For the foregoing reasons, we DISMISS the petition for lack of jurisdiction.




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