     Case: 12-60274       Document: 00512188008         Page: 1     Date Filed: 03/26/2013




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

                                                                            FILED
                                                                          March 26, 2013
                                     No. 12-60274
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MELVIN GUARDADO GARCIA,

                                                  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. A-043-993-837


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Melvin Guardado Garcia, a native and citizen of El Salvador, petitions for
review of a final order of the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ) final order of removal and denial of a
waiver of admissibility under section 212(c) of the Immigration and Nationality
Act (INA). The BIA agreed with the IJ’s finding that Garcia fraudulently
obtained lawful permanent resident (LPR) status through a material
misrepresentation and, as such, was not eligible for a § 212(c) waiver.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60274

      Garcia contends that the Texas offense of burglary of a habitation is a
divisible statute that encompasses acts that do and do not qualify as acts of
moral turpitude. He further contends that neither the IJ or the BIA conducted
the proper analysis to determine whether he was convicted under a subsection
of the Texas statute that constituted a crime involving moral turpitude. He thus
asserts that the IJ’s finding that he committed fraud by not disclosing a
conviction for a crime of moral turpitude in his application for an immigrant visa
was erroneous.
      We review constitutional claims and questions of law de novo. Mai v.
Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). We review factual determinations
under the substantial evidence standard and the BIA’s findings will not be
reversed “unless the evidence is so compelling that no reasonable fact finder
could fail to find otherwise.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th
Cir. 2001) (internal quotations and citations omitted).
      Relief under § 212(c) may not be granted to an alien who “has not been
lawfully admitted for permanent residence.” 8 C.F.R. § 1212.3(f)(1). The
statutory phrase “lawfully admitted for permanent residence” does not apply to
aliens who “obtained their permanent resident status by fraud, or had otherwise
not been entitled to it.” In re Koloamatangi, 23 I&N Dec. 548, 550 (BIA 2003).
Contrary to Garcia’s assertion, the act of fraud the IJ determined Garcia
committed was his failure to disclose “his arrest and guilty plea” to the crime of
burglary of a habitation. The BIA affirmed the IJ’s finding that Garcia’s “failure
to disclose his conviction when he applied for an immigrant visa constitute[d] a
willful misrepresentation of a material fact.” As the IJ determined, Garcia’s
felony burglary conviction would have rendered him ineligible to obtain LPR
status at the time he filed his visa application. See INA § 245A(b)(1)(C), codified
at 8 U.S.C. § 1255a(b)(1)(C) (requiring an alien seeking to adjust his status to
show that he has not been convicted of a felony). Thus, Garcia’s argument,
which focuses on whether his burglary conviction constitutes a crime involving

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                                  No. 12-60274

moral turpitude, is misplaced since it was not the only basis for finding Garcia
removable and, as such, ineligible for a § 212(c) waiver. Garcia does not contest
the existence of his burglary conviction, nor the IJ’s finding that he “knowingly,
willfully, or fraudulently” failed to disclose it in his immigrant visa application
in order to obtain LPR status. Because Garcia misrepresented his criminal
history and obtained his LPR status due to this misrepresentation, he was not
“lawfully admitted for permanent residence.” See Koloamatangi, 23 I&N Dec.
at 550. As such, the BIA properly determined that Garcia was not statutorily
eligible for a § 212(c) waiver. See § 1212.3(f)(1). Accordingly, his petition for
review is DENIED.




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