                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 10-2427


MOHAMMED TOUMI,

                  Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



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


Submitted:   July 29, 2011                    Decided:   August 24, 2011


Before KING, DAVIS, and WYNN, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Jason A. Dzubow, DZUBOW, SARAPU & PILCHER, PLLC, Washington,
D.C., for Petitioner.    Tony West, Assistant Attorney General,
Linda S. Wernery, Assistant Director, Gregory M. Kelch, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Mohammed    Toumi,    a    native       and   citizen      of    Morocco,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)      dismissing     his       appeal   from   the    immigration

judge’s order finding he was removable for having been convicted

of a crime of moral turpitude, see Immigration and Nationality

Act     (“INA”)   § 237(a)(2)(A)(i);           8     U.S.C.     § 1227(a)(2)(A)(i)

(2006), and not eligible for a waiver of inadmissibility under

INA § 212(h), 8 U.S.C. § 1182(h) (2006).

              Under   8   U.S.C.    §   1252(a)(2)(C)         (2006),     this    court

lacks     jurisdiction,        except         as     provided      in     8      U.S.C.

§ 1252(a)(2)(D) (2006), to review the final order of removal of

an alien convicted of certain enumerated crimes, including a

crime of moral turpitude.               Under § 1252(a)(2)(C), this court

retains jurisdiction to review factual determinations such as

whether Toumi is an alien and whether he has been convicted of a

crime of moral turpitude.           Ramtulla v. Ashcroft, 301 F.3d 202,

203 (4th Cir. 2002).          If the court is able to confirm these two

factual determinations, then, under 8 U.S.C. § 1252(a)(2)(C),

(D),    the   Court   can    only   consider         “constitutional          claims   or

questions of law.”          See Mbea v. Gonzales, 482 F.3d 276, 278 n.1

(4th Cir. 2007) (internal quotation marks omitted).




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            While Toumi does not challenge the finding that he is

an alien removable for having been convicted of a crime of moral

turpitude, he claims that 8 U.S.C. § 1182(h) violates his and

his   family’s    right    to    equal      protection   under   the   Fifth

Amendment.

            Judicial review over federal immigration legislation

is limited.      Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2000).

The power to expel or exclude aliens is a “fundamental sovereign

attribute    exercised    by   the   Government’s   political    departments

largely immune from judicial control.”              Shaughnessy v. Mezei,

345 U.S. 206, 210 (1953).            “[A] statutory classification that

neither proceeds along suspect lines nor infringes fundamental

constitutional rights must be upheld against equal protection

challenge if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification.”

FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).

Under rational basis review, a statute will be upheld if there

is a rational relationship between the alleged disparity and

some legitimate government purpose.              Adkins v. Rumsfeld, 464

F.3d 456, 469 (4th Cir. 2006).             Rational basis review does not

require the court to identify Congress’ actual rationale for the

distinction.     The statute will be upheld if “there are plausible

reasons for Congress’ action.”             United States R.R. Ret. Bd. v.



                                       3
Fritz, 449 U.S. 166, 179 (1980).                           The burden is on the one

raising     the    equal       protection            challenge         to    negate       “every

conceivable basis which might support it[.]”                           Heller v. Doe, 509

U.S. 312, 320 (1993) (internal quotation marks omitted).

            INA    § 212(h),         8    U.S.C.       § 1182(h),           provides      for    a

waiver of inadmissibility for certain aliens if it is found that

the alien’s removal will be an extreme hardship to the United

States citizen or lawfully resident family member.                               The waiver

is   appropriate       if    the    Attorney         General     has    consented         to    the

alien applying or reapplying for a visa, for admission to the

United    States       or     for     adjustment            of   status.             8    U.S.C.

§ 1182(h)(2).          Under the statute, a lawful permanent resident

(“LPR”), like Toumi, is not eligible for the waiver if he cannot

establish     seven         years    continuous            residency         prior       to    the

commencement of the removal proceedings.                          In addition, under 8

C.F.R. § 1245.1(f) (2011), “an alien in the United States” must

file an application for adjustment of status in order to be

considered for the § 212(h) waiver.

            Because         Toumi        could       not     establish         seven          years

continuous residency prior to the commencement of the removal

proceedings,      he    was    found      not       eligible     for    the    INA       § 212(h)

waiver.     Toumi notes that criminal non-LPRs are not statutorily

obligated    to    show      seven    years         continuous     residency         prior      to



                                                4
being     considered         for    the     waiver.             He        contends          that    the

distinction      between       LPRs       and       non-LPRs        violates          his    and    his

family’s right to equal protection under the law.

              This     court       has     already           rejected       a    similar           equal

protection challenge to § 1182(h).                           See Ramtulla, 301 F.3d at

203-04.      Similarly, every circuit court to have considered this

issue has rejected the equal protection challenge.                                      See, e.g.,

Lukowski v. INS, 279 F.3d 644, 647-48 (8th Cir. 2002); Moore v.

Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001); Lara-Ruiz v.

INS, 241 F.3d 934, 946-48 (7th Cir. 2001).                                  Those cases cite

several      reasons    for    finding          a       rational     basis       supporting         the

distinction at issue.              Toumi’s attempts to negate those reasons

are without merit.

              Because Toumi was statutorily not eligible for the INA

§ 212(h)      waiver    and    he     failed            to   show    that       the    distinction

between      LPRs      and     non-LPRs             violates        his     right           to     equal

protection, we deny the petition for review.                                We also conclude

that his claim that his family’s right to equal protection was

also violated is without merit.                         See Gallanosa v. United States,

785   F.2d    116,     120    (4th       Cir.   1986). *            We    dispense          with    oral


      *
       In light of the fact that Toumi is not statutorily
eligible for the INA § 212(h) waiver, and that his equal
protection challenge is unsuccessful in this regard, we decline
to reach his other equal protection argument because the
(Continued)

                                                    5
argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                      PETITION DENIED




resolution of that argument       will   have   no   bearing   on   his
eligibility for the waiver.



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