                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 27 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GILDARDO FRUTOS-LOPEZ,                           No. 10-73750

              Petitioner,                        Agency No. A029-484-149

       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 November 14, 2011
                                Portland, Oregon

Before: FISHER, PAEZ and CLIFTON, Circuit Judges.

      Gildardo Frutos-Lopez applied for adjustment of status to that of an alien

admitted for lawful permanent residence under 8 U.S.C. § 1255(i). Pursuant to 8

U.S.C. § 1182(a)(9)(C)(i)(I) and (II), the Immigration Judge found Frutos

ineligible and denied his application for adjustment of status, also denying his




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
application for voluntary departure. The Board of Immigration Appeals (BIA)

dismissed Frutos’ appeal. We deny Frutos’ petition.

      (1) Adjustment of Status. Frutos argues that § 1255(i) should permit

adjustment of status for those individuals, like himself, who are inadmissible under

§ 1182(a)(9)(C)(i). However, the BIA has interpreted the statutes to mean that an

alien inadmissible under § 1182(a)(9)(C)(i)(I) and (II) is ineligible for adjustment

of status. See In re Briones, 24 I. & N. Dec. 355 (BIA 2007); In re Torres-Garcia,

23 I. & N. Dec. 866 (BIA 2006). Under Chevron USA, Inc. v. Natural Res. Def.

Council, 467 U.S. 837 (1984), we defer to the agency’s permissible interpretation

of the statute, and we have previously adopted the BIA’s interpretation. See

Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1242 (9th Cir. 2007).

Accordingly, Frutos’ argument fails.

      (2) Waiver of Inadmissibility. Frutos contends that a waiver for unlawful

presence under § 1182(a)(9)(B)(v) also waives inadmissibility under §

1182(a)(9)(C). The BIA rejected Frutos’ argument because § 1182(a)(9)(B)(v)

specifically provides that the Attorney General has “discretion to waive clause (i)”

(emphasis added). We have interpreted this section to refer only to “clause (i) of

subparagraph (B).” Acosta v. Gonzales, 439 F.3d 550, 557-58 (9th Cir. 2006)

(recognizing that in construing statutes, words are given their ordinary meaning),


                                          2
abrogated on other grounds by Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th

Cir. 2011). Because the waiver is limited to aliens under § 1182(a)(9)(B)(i), it

does not apply to Frutos.

      (3) Equal Protection. Frutos argues that § 1182(a)(9)(C) violates the equal

protection clause because it irrationally discriminates between two classes of

aliens. An alien who accrues an aggregate period of more than one year of

unlawful presence, departs the United States and then reenters unlawfully or

attempts to reenter unlawfully is rendered inadmissible for 10 years. In contrast,

an alien who makes any number of unlawful entries, but never accrues a total of

more than one year of unlawful presence, departs the United States and then

reenters unlawfully or attempts to do so does not become inadmissible under §

1182(a)(9)(C).

      To establish an equal protection violation, Frutos must show that the

distinction is “wholly irrational.” Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167

(9th Cir. 2004) (quoting Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002)).

He must disprove “every conceivable basis which might support a legislative

classification, whether or not the basis has a foundation in the record.” Id. (quoting

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1164 (9th Cir. 2002)). If the




                                          3
government provides a rational reason for the rule, the equal protection claim fails.

See id.

      Here, the government argues that it is rational for Congress to have decided

to punish aliens who have accrued more than one year of unlawful presence more

harshly than aliens who have accrued a lesser amount of time. Frutos has failed to

show that this distinction is “wholly irrational,” so we must reject his equal

protection argument.1

      PETITION FOR REVIEW DENIED.




      1
        But cf. Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th Cir. 2005) (in
addressing a different but related distinction between two classes of aliens,
accepting government’s argument that an alien who has accumulated multiple
illegal entries is “more culpable than . . . a one-time illegal alien” and that it is
therefore rational to punish him more severely).

                                           4
