                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 28, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                              FOR THE TENTH CIRCUIT


    VERA SCHUBLER,

                Petitioner,

    v.                                                  No. 11-9543
                                                    (Petition for Review)
    ERIC H. HOLDER, JR., Attorney
    General of the United States,

                Respondent.


                              ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Vera Schubler petitions for review of a Board of Immigration Appeals

(BIA) order denying her motion for reconsideration. She contends that the

Immigration Judge (IJ) did not have jurisdiction to find her inadmissible and

order her removal. Alternatively, she claims that she is not inadmissible because



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
her conviction for a crime of moral turpitude (CIMT) qualifies for the so-called

petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Exercising

jurisdiction under 8 U.S.C. § 1252, we find no abuse of discretion and deny the

petition.

                                   Background

      Schubler, a native and citizen of Germany, became a lawful permanent

resident (LPR) in 1969. In 1998, she was convicted of wire fraud and causing a

criminal act, in violation of 18 U.S.C. §§ 1342 and 1343. She was sentenced to

supervised release and ordered to pay $75,949.22 in restitution. Schubler briefly

left the country in 2003. On November 16, 2003, she applied for admission as an

arriving alien and was paroled into the United States. 1 The Department of

Homeland Security (DHS) issued a Notice to Appear (NTA) charging Schubler

with being inadmissible as an alien who has been convicted of a CIMT. See

8 U.S.C. § 1182(a)(2)(A)(i)(I).

      At a hearing in August 2006, Schubler admitted the factual allegations in

the NTA and conceded she was removable. At a later hearing, in December 2006,

Schubler asserted that her 1998 conviction was a nonremovable offense under the

petty offense exception to inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(ii)(II).



1
      Despite her LPR status, Schubler was considered an alien seeking
admission to the United States because she had committed an offense identified in
8 U.S.C. § 1182(a)(2). See 8 U.S.C. § 1101(a)(13)(C)(v).

                                        -2-
As relevant here, that section provides an exception to inadmissibility for aliens

convicted of a CIMT “who committed only one crime if . . . the maximum penalty

possible for the crime of which the alien was convicted . . . did not exceed

imprisonment for one year and . . . the alien was not sentenced to a term of

imprisonment in excess of 6 months.” Id. Schubler also informed the IJ that her

application to renew her LPR card was pending with the United States Office of

Citizenship and Immigration Services (CIS), and that her spouse had filed an

I-130 visa petition with CIS seeking to adjust her status as the immediate relative

of a United States citizen.

      Schubler requested, and the IJ granted, several continuances of the removal

proceedings pending CIS’s adjudication of the I-130 petition filed on her behalf.

When the removal proceedings resumed, she reiterated her contention regarding

applicability of the petty offense exception. She asserted that “the maximum

penalty possible,” as used in § 1182(a)(2)(A)(ii)(II), refers to the maximum

sentence under the United States Sentencing Guidelines (USSG), as determined

by the sentencing court. Schubler maintained that the sentencing range in her

case was 6-12 months and therefore the maximum penalty possible “did not

exceed imprisonment for one year.” Id. She also argued, citing 8 C.F.R.

§ 1245.2(a)(1)(ii), that CIS had exclusive jurisdiction over the determination of

her LPR status and, by renewing her LPR card, CIS had “admitted” her into the

United States. She therefore asked the IJ to terminate the removal proceedings.


                                         -3-
Alternatively, she asked the IJ to terminate the proceedings to allow CIS to

exercise its jurisdiction over the I-130 petition, which CIS had approved.

      The IJ issued a decision finding Schubler removable based on her

conviction for a CIMT. The IJ rejected her contention that her 1998 conviction

qualified for the petty offense exception under § 1182(a)(2)(A)(ii)(II), concluding

that “the maximum penalty possible,” as used in that section, refers to the

maximum penalty under the statute of conviction. The IJ found that the maximum

penalty under Schubler’s statute of conviction, 18 U.S.C. § 1343, was 30 years’

imprisonment. The IJ did not address her jurisdictional argument.

      Schubler appealed the IJ’s removal order to the BIA, arguing the IJ erred in

construing the petty offense exception and in failing to terminate the proceedings

to allow her to seek adjustment of status. The BIA dismissed her appeal.

Schubler then filed a motion for reconsideration, arguing only that the BIA erred

in construing the petty offense exception. The BIA denied Schubler’s motion and

she filed a petition for review with this court.

                         Jurisdiction and Scope of Review

      Our jurisdiction to review a final order of removal arises under 8 U.S.C.

§ 1252, but a petition for review must be filed within 30 days of the date of the

order, see § 1252(b)(1). Therefore, to the extent that Schubler purports to raise

issues related to the BIA’s order dismissing her appeal, we do not have

jurisdiction to review that decision because she failed to file a timely petition for


                                          -4-
review. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004).

Consequently, we have jurisdiction to review only the BIA’s denial of Schubler’s

motion for reconsideration. See id. at 1361-62 (holding motions to reopen and

reconsider are subject to judicial review).

      Except to the extent a petitioner raises constitutional claims or questions of

law, we do not have jurisdiction to review a final order of removal against an

alien who is removable on the basis that she committed a CIMT. See 8 U.S.C.

§ 1252(a)(2)(C) & (D). Schubler has not raised a constitutional claim, and this

court has construed the term “questions of law” in § 1252(a)(2)(D) to include

only “a narrow category of issues regarding statutory construction.” Diallo v.

Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (quotation omitted). Schubler’s

claim that her conviction qualifies her for the petty offense exception to

inadmissibility under § 1182(a)(2)(A)(ii)(II) is such a question of law subject to

our review.

      Schubler also argues that, by renewing her LPR card, CIS made the legal

determination that she qualifies for the petty offense exception. She maintains

that CIS’s determination should be given deference. Assuming without deciding

that this contention is reviewable under § 1252(a)(2)(D), we nonetheless conclude

that we may not review it because Schubler did not raise it with the BIA. See

Rivera-Zurita v. INS, 946 F.2d 118, 120 & n.2 (10th Cir. 1991) (“Judicial review

does not extend to points the alien could have made before the Board but did


                                         -5-
not.”). But we may review Schubler’s related contention that the IJ lacked

jurisdiction to make the petty offense determination with respect to her because

CIS had exclusive jurisdiction to determine her permanent resident status and her

admission as an arriving alien. Although Schubler also failed to raise this

contention with the BIA, “[j]urisdictional challenges can be made by any party or

the court at any time and are not subject to waiver or forfeiture.” Huerta v.

Gonzales, 443 F.3d 753, 755 (10th Cir. 2006) (stating “[w]e have jurisdiction

over a case only when jurisdiction over the underlying order was proper”).

                                     Discussion

      We review the BIA’s denial of a motion for reconsideration for an abuse of

discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).

Under that standard, “any error of law is presumptively an abuse of discretion,”

S. Utah Wilderness Alliance v. Bur. of Land Mgmt., 425 F.3d 735, 750 (10th Cir.

2005), and we review the BIA’s legal determinations de novo, Lockett v. INS,

245 F.3d 1126, 1128 (10th Cir. 2001). We likewise review issues of jurisdiction

de novo. Huerta, 443 F.3d at 755.

                                          1.

      We address Schubler’s jurisdictional argument first. An IJ’s authority in

removal proceedings is defined by 8 U.S.C. § 1229a(a)(1), which provides: “An

immigration judge shall conduct proceedings for deciding the inadmissibility . . .

of an alien.” That section states further that, “[u]nless otherwise specified in this


                                         -6-
chapter, a proceeding under this section shall be the sole and exclusive procedure

for determining whether an alien may be admitted to the United States.” Id.

§ 1229a(a)(3). Section 1182(a) sets forth classes of aliens who are inadmissible,

including those convicted of certain crimes, see id. § 1182(a)(2). Here, the IJ

determined that Schubler was inadmissible based on her conviction for a CIMT

that did not qualify her for the petty offense exception under

§ 1182(a)(2)(A)(ii)(II). Thus, absent a contrary provision in the same chapter, the

IJ’s ruling was squarely within its jurisdiction under § 1229a(a)(1).

      Schubler cites 8 C.F.R. § 1245.2(a)(1)(ii), which provides: “In the case of

an arriving alien who is placed in removal proceedings, the immigration judge

does not have jurisdiction to adjudicate any application for adjustment of status

filed by the arriving alien . . . .” 2 She contends that the IJ exceeded his

jurisdiction under this regulation in determining that she did not qualify for the

petty offense exception. We disagree. While Schubler was “an arriving alien

who [was] placed in removal proceedings,” she fails to identify any application

for adjustment of status that the IJ adjudicated in this case. To the contrary, in

her appeal to the BIA she argued that the IJ erred by not terminating the removal




2
       The regulation defines limited circumstances, not applicable in this case,
under which an IJ does have jurisdiction in removal proceedings to adjudicate an
arriving alien’s application for adjustment of status. See 8 C.F.R.
§ 1245.2(a)(1)(ii)(A)-(D).

                                          -7-
proceedings in order to allow CIS to exercise its exclusive discretion over her

pending application to adjust status. The BIA ruled, however, that

      it is not appropriate to terminate proceedings when the alien is
      removable and has no relief from removal available in Immigration
      Court. Additionally, we note that the DHS retains jurisdiction to
      adjudicate applications for adjustment of status even where an
      administratively final order of removal remains outstanding, and may
      grant deferred action to a respondent if it chooses to do so.

Admin. R. at 23. Although the IJ’s inadmissibility determination terminated

Schubler’s previously granted LPR status as a matter of law, see 8 C.F.R. § 1.2

(providing that LPR “status terminates upon entry of a final administrative order

of . . . removal”), in making that ruling the IJ did not “adjudicate any application

for adjustment of status filed by [Schubler]” in violation of § 1245.2(a)(1)(ii).

We reject Schubler’s claim that the IJ exceeded its jurisdiction.

                                          2.

      Schubler’s second contention is that the BIA erred in concluding that she

did not qualify for the petty offense exception to inadmissibility. That exception

applies if three circumstances exist: (1) the alien committed only one crime;

(2) “the maximum penalty possible for the crime of which the alien was convicted

(or which the alien admits having committed or of which the acts that the alien

admits having committed constituted the essential elements) did not exceed

imprisonment for one year”; and (3) “if the alien was convicted of such crime, the

alien was not sentenced to a term of imprisonment in excess of 6 months



                                         -8-
(regardless of the extent to which the sentence was ultimately executed).”

8 U.S.C. § 1182(a)(2)(A)(ii)(II).

      The BIA construed “the maximum penalty possible” as referring to the

statutory maximum penalty for the crime of conviction. It therefore concluded

that the exception did not apply to Schubler’s conviction for wire fraud, which (at

the time she was convicted) carried a statutory maximum sentence of five years,

with an alternative 30-year maximum sentence for a violation affecting a financial

institution. See 18 U.S.C. § 1343 (1998). The BIA rejected Schubler’s

contention that the sentencing court determines “the maximum penalty possible”

based upon the guidelines imprisonment range applicable to the alien defendant.

The BIA stated, “[T]he plain language of the ‘petty offense’ exception is focused

on the statutory maximum penalty for the ‘crime’ of conviction, rather than the

guidelines maximum, which varies from one offender to another based on factors

unrelated to the immediate ‘crime,’ such as criminal history.” Admin. R. at 22.

Although Schubler reasserted her argument regarding applicability of the petty

offense exception in her motion for reconsideration, the BIA found no reason to

revisit its conclusion.

      Schubler contends on appeal that the BIA erred in construing

§ 1182(a)(2)(A)(ii)(II). Although this court has not addressed the meaning of

“the maximum penalty possible,” as used in that section, three of our sister

circuits have rejected Schubler’s position that this language refers to the


                                         -9-
maximum sentence based upon the guidelines imprisonment range applicable to

the alien, rather than the statutory maximum penalty.

      In Mendez-Mendez v. Mukasey, 525 F.3d 828, 833 (9th Cir. 2008), the

Ninth Circuit held that “[t]he plain language of [§ 1182(a)(2)(A)(ii)(II)] indicates

that the phrase, ‘the maximum penalty possible,’ refers to the statutory maximum,

not the maximum sentence under the sentencing guidelines.” The court gave

three reasons in support of its construction: (1) by requiring that the alien, if

convicted, must have actually received a sentence of six months or less, “the

statute already takes into consideration the fact that the sentence imposed might

be below the maximum penalty possible”; (2) the statute’s reference to “the

maximum penalty possible for the crime of which the alien was convicted” most

sensibly refers to the statutory maximum penalty; and (3) aliens who admit

committing a crime, but were not convicted, are also eligible for the petty offense

exception, but there would be no guidelines range in those circumstances defining

the maximum penalty possible for the crime. Id. (quotation omitted). 3

      In Mejia-Rodriguez v. Holder, 558 F.3d 46, 50 (1st Cir. 2009), the First

Circuit agreed with the Ninth Circuit’s construction. It held:

      The statute itself makes no reference to the Sentencing Guidelines.
      The language of the statute plainly refers to the ‘maximum penalty

3
       The Ninth Circuit also cited a number of cases in which it had interpreted
slightly different statutory language as referring to the statutory maximum penalty
rather than the maximum under the guidelines range. See Mendez-Mendez,
525 F.3d at 833-34.

                                         -10-
      possible’ and that maximum is set by statute. That maximum
      possible punishment is for ‘the crime of which the alien was
      convicted,’ a reference again to the statute of conviction.

Id.; accord, Vartelas v. Holder, 620 F.3d 108, 115-16 (2d Cir. 2010), cert.

granted on other grounds, 132 S. Ct. 70 (2011); see also Matter of Ruiz-Lopez,

25 I. & N. Dec. 551, 551 (BIA 2011) (holding petty offense exception

inapplicable where guidelines range was 0-60 days’ imprisonment, but maximum

term of imprisonment for crime was five years).

      We join our sister circuits in holding that the plain meaning of “the

maximum penalty possible” in § 1182(a)(2)(A)(ii)(II), is the statutory maximum

penalty possible for the crime. Schubler’s construction would lead to the

untenable conclusion that the maximum penalty possible means one thing (the

maximum under the guidelines range) if the alien was convicted of the crime, but

something else (the statutory maximum penalty) if the alien admitted committing

the crime or the acts constituting the essential elements of the crime, but was not

convicted. See Mendez-Mendez, 525 F.3d at 833.

      Moreover, the criminal cases cited by Schubler are inapposite to the

statutory construction question raised in this case. These decisions address the

standard of appellate review for district courts’ sentencing determinations, see

United States v. Smart, 518 F.3d 800, 805-09 (10th Cir. 2008), or the requirement

that facts used to increase the penalty for a crime above the statutory maximum be




                                        -11-
found by a jury beyond a reasonable doubt, see Blakely v. Washington, 542 U.S.

296, 301 (2004).

      Nor does In Re Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005), inform our

interpretation of the meaning of “the maximum penalty possible” in the petty

offense exception. Schubler asserts this case supports the proposition “that the

maximum sentence of imprisonment is the time period that is issued by the

underlying court without regard to its reasoning.” Pet. Opening Br. at 24. But

Cota-Vargas reaches no such holding. The BIA concluded it would give full faith

and credit to a state court’s decision to modify an alien’s sentence nunc pro tunc

so that his offense would no longer be an “aggravated felony” subjecting him to

removal. See Cota-Vargas, 23 I. & N. Dec. at 852-53. Although Schubler

suggests otherwise, the definition of “aggravated felony” at issue in Cota-Vargas

does not refer to “the maximum penalty possible” or use any similar language.

See id. at 850; 8 U.S.C. § 1101(a)(43)(G) (defining aggravated felony to include

“a theft offense (including receipt of stolen property) or burglary offense for

which the term of imprisonment [was] at least one year” (footnote omitted)).

      The BIA did not err in construing “the maximum penalty possible” in

8 U.S.C. § 1182(a)(2)(A)(ii)(II) as referring to the statutory maximum penalty for

the crime of which the alien was convicted. Schubler fails to establish that the

BIA abused its discretion in denying her motion for reconsideration.




                                        -12-
The petition for review is DENIED.


                                      Entered for the Court



                                      Bobby R. Baldock
                                      Circuit Judge




                               -13-
