     Case: 09-60070     Document: 00511009804         Page: 1     Date Filed: 01/21/2010




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

                                                FILED
                                                                          January 21, 2010

                                     No. 09-60070                      Charles R. Fulbruge III
                                   Summary Calender                            Clerk



MAXIMILIANO PATRICIO MOLINA-RAMIREZ,

                                                  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. A41-107-953


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Maximiliano Patricio Molina-Ramirez appeals from a decision of the Board
of Immigration Appeals ordering him removed from the United States as an
alien convicted of an aggravated felony. We affirm.
                                              I
        Maximiliano Patricio Molina-Ramirez is a native and citizen of El
Salvador. Molina-Ramirez claims that he first entered the United States in 1978



         *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
   Case: 09-60070   Document: 00511009804      Page: 2   Date Filed: 01/21/2010

                                  No. 09-60070

through San Ysidro, California. Immigration records establish that Molina-
Ramirez was legally admitted to the United States on September 30, 1986, after
his American-born wife petitioned for him to become a lawful permanent
resident (LPR). Subsequently, Molina-Ramirez served in the United States
Navy during the invasion of Panama in 1989. Since receiving his discharge from
the Navy in 1990, Molina-Ramirez has compiled an extensive criminal record.
His history includes convictions for attempted auto theft, attempted grand theft,
and possession of a firearm by a felon. Most recently, Molina-Ramirez was
convicted in the Third Judicial Circuit Court in Wayne County, Michigan, of
second-degree home invasion in violation of Michigan Compiled Laws
§ 750.110a(3), for which he was sentenced to 12 month’s incarceration.
      Following a trip to El Salvador in 2005, Molina-Ramirez was refused entry
into the United States on the basis of his prior convictions. Molina-Ramirez was
deprived of his green card and paroled into the country while the Department
of Homeland Security (DHS) obtained a copy of his conviction record to sustain
inadmissibility. The DHS subsequently served Molina-Ramirez with a Notice
to Appear charging him as an “arriving alien” subject to removal. The DHS,
however, never filed this charge with the immigration court, and his green card
was returned to him through the mail.
      A second Notice to Appear was prepared in 2008 and filed with the
immigration court. This second Notice charged Molina-Ramirez as an LPR
subject to removal under section 237 of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1227. The DHS charged him with removability as an alien who
at anytime after admission was convicted of: (1) two crimes involving moral
turpitude not arising out of a single scheme of criminal conduct, in violation of
8 U.S.C. § 1227(a)(2)(A)(ii); (2) an aggravated felony “crime of violence” under 8
U.S.C. § 1101(a)(43)(F), in violation of 8 U.S.C. § 1227(a)(2)(A)(iii); (3) an
aggravated felony firearms offense under § 1101(a)(43)(E)(ii), in violation of

                                        2
   Case: 09-60070   Document: 00511009804      Page: 3   Date Filed: 01/21/2010

                                  No. 09-60070

§ 1227(a)(2)(A)(iii); and (4) an aggravated felony theft or burglary offense under
§ 1101(a)(43)(G), also in violation of § 1227(a)(2)(A)(iii). Thereafter, the DHS
additionally charged Molina-Ramirez as an alien who, at any time after
admission, was convicted of a firearms offense, in violation of 8 U.S.C.
§ 1227(a)(2)(C).
      At a hearing before the immigration judge(IJ), Molina-Ramirez’s attorney
conceded that Molina-Ramirez was admitted to the United States as an LPR in
1986. Through his attorney, Molina-Ramirez argued that he was eligible for
relief because of his service in the military. Alternatively, Molina-Ramirez
argued that, despite his convictions, he was eligible for a discretionary waiver
pursuant to INA § 212(h), 8 U.S.C. § 1182(h) (a § 212(h) waiver).
      The IJ sustained removability and held that Molina-Ramirez’s conviction
for home invasion constituted a “crime of violence” and an aggravated felony as
defined in section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F).
Consequently, the IJ concluded that Molina-Ramirez was statutorily ineligible
for cancellation of removal under section 240(a) of the Act, 8 U.S.C. § 1229b(a).
Finally, the IJ denied Molina-Ramirez’s motion to terminate proceedings to
allow him to proceed with his appeal of the DHS’s denial of his application for
naturalization. The IJ found that she lacked jurisdiction to adjudicate
naturalization applications and noted that Molina-Ramirez could not establish
that he was prima facie eligible for naturalization, in any event, because the
DHS had already denied his application. Accordingly, the IJ ordered Molina-
Ramirez removed to his native El Salvador.
      Molina-Ramirez appealed the IJ’s decision to the Board of Immigration
Appeals (BIA). He renewed his argument that his military service qualified him
for citizenship and his claim for entitlement to a § 212(h) waiver. In support of
his waiver claim, Molina-Ramirez argued that the IJ erred in concluding as a
finding of fact that Molina-Ramirez was admitted into the United States in 1986.

                                        3
   Case: 09-60070        Document: 00511009804         Page: 4    Date Filed: 01/21/2010

                                        No. 09-60070

Likewise, Molina-Ramirez asserted that, as a person who had adjusted his
status after entering the country, he was eligible for a waiver under this under
this court’s precedent in Martinez v. Mukasey.2
       The BIA affirmed the IJ’s finding that Molina-Ramirez “is a native and
citizen of El Salvador who was admitted to the United States as a lawful
permanent resident on September 30, 1986.” The BIA agreed with the IJ’s
ruling     that   Molina-Ramirez’s       home-invasion       conviction    constituted     an
aggravated felony and affirmed the ruling that Molina-Ramirez was “ineligible
for cancellation of removal.” The BIA also found that the IJ’s denial of Molina-
Ramirez’s motion to terminate was mandated by the Board’s decisions in In re
Cruz3 and In re Hidalgo.4 Molina-Ramirez timely appealed.
                                              II
       This court reviews the decision of the BIA, and we reach the underlying
decision of the immigration judge only if that decision has some impact upon the
BIA’s opinion.5 This court reviews the BIA’s conclusions of law de novo.6
                                             III
       Molina-Ramirez presents two related but distinct arguments why he
should be granted relief: that (1) he is eligible to seek a discretionary waiver of
inadmissibility under INA § 212(h); and (2) he is not barred from seeking a


       2
         See 519 F.3d 532, 546 (5th Cir. 2008) (holding that aliens who adjust to LPR status
post-entry are eligible for § 212(h) waivers, while those who are initially admitted into the
United States as LPRs do not qualify under the plain language of the statute).
       3
         15 I. & N. Dec. 236 (BIA 1975), superseded by statute, Immigration Act of 1990, Pub.
L. No. 101-649, § 401, 104 Stat. 4978, 5038, as recognized in Saba-Bakare v. Chertoff, 507 F.3d
337 (2007).
       4
           24 I. & N. Dec. 103 (BIA 2007).
       5
        Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002) (citing Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997)).
       6
           Id.

                                              4
   Case: 09-60070         Document: 00511009804         Page: 5    Date Filed: 01/21/2010

                                         No. 09-60070

waiver because his home-invasion conviction is not an aggravated felony, as
defined under 8 U.S.C. § 1101(a)(43)(F). Molina-Ramirez further requests that
the court address the issue of whether an executive order designating the
Panama invasion as an armed conflict was required in order for him to be
approved for naturalization.
                                               A
       This court lacks jurisdiction to issue a declaratory judgment on the
question of whether an executive order designating the Panama invasion as an
armed conflict is required for Molina-Ramirez to be approved for naturalization.
In 1990, Congress granted the Attorney General exclusive authority to
naturalize aliens, removing the authority that courts had previously held to
naturalize aliens.7 Indeed, under the amendment to 8 U.S.C. § 1421, only an
affirmative communication from the U.S. Citizenship and Immigration Services
may establish prima facie eligibility for naturalization.8 This court does not
have       jurisdiction   to   declare    Molina-Ramirez       prima      facie   eligible   for
naturalization as he requests “when Congress has said that the Attorney
General has exclusive authority to naturalize aliens.”9
                                               B
       The BIA ruled Molina-Ramirez was ineligible for cancellation of removal
because his conviction for second-degree home invasion falls within the meaning
of a “crime of violence” as defined by immigration law. The INA forbids the
cancellation of removal in the case of a deportable alien who has been convicted
of “any aggravated felony.” 10 Similarly, 8 U.S.C. § 1182(h) gives the Attorney


       7
            Saba-Bakare v. Chertoff, 507 F.3d 337, 341 (5th Cir. 2007).
       8
            Id.
       9
            See id.
       10
            8 U.S.C. § 1229b(a)(3).

                                                5
   Case: 09-60070        Document: 00511009804       Page: 6   Date Filed: 01/21/2010

                                        No. 09-60070

General discretion to waive inadmissibility for LPRs in certain circumstances,
but LPRs who have committed aggravated felonies since the date of their
admission are ineligible for relief.
      Molina-Ramirez contends the IJ erred in denying his right to apply for a
waiver because the conviction for home invasion under Michigan law was not an
aggravated felony.        Specifically, Molina-Ramirez argues that the Michigan
offense is a divisible statute that includes conduct that may not be regarded as
breaking and entering, such as entering a home without consent.
      A conviction is an “aggravated felony” for immigration purposes if the
offense involves “a crime of violence” for which the term of imprisonment is at
least one year.11 The definition of “crime of violence” includes “any offense” that
“by its nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the offense.”12
      The Michigan statute under which Molina-Ramirez was convicted states
that a person is “guilty of home invasion in the second degree” if that person:
(1) “breaks and enters a dwelling with intent to commit a felony, larceny, or
assault in the dwelling”; (2) “enters a dwelling without permission with intent
to commit a felony, larceny, or assault in the dwelling”; or (3) “breaks and enters
a dwelling or enters a dwelling without permission and, at any time while he or
she is entering, present in, or exiting the dwelling, commits a felony, larceny, or
assault.” 13 Molina asserts that “entering without permission” is not categorically
a “crime of violence” because entering a dwelling without permission does not
involve a substantial threat of physical force against the person or property of
another. This argument lacks merit.


      11
           8 U.S.C. § 1101(a)(43)(F).
      12
           18 U.S.C. § 16(b).
      13
           MICH . COM P . LAW S § 750.110a(3).

                                                 6
   Case: 09-60070          Document: 00511009804      Page: 7     Date Filed: 01/21/2010

                                        No. 09-60070

       In United States v. Flores, the defendant asserted that his conviction for
burglary of a habitation did not qualify as a crime of violence because there did
not have to be a substantial risk of force to be convicted of burglary under the
Texas Penal Code.14 Noting that 18 U.S.C. § 16(b) defined a crime of violence as
any felony involving a “substantial risk” of the use of force against another, the
court reasoned that “[w]henever a private residence is broken into, there is
always a substantial risk that force will be used.” 15 Likewise, in United States
v. Guadardo, this court held that burglary of a habitation under the Texas Penal
Code is always a crime of violence under the definition in 18 U.S.C. § 16,
obviating the need for a district court to consider the factual context of such a
conviction.16 The Texas statute substantially approximates the Michigan statute
under which Molina-Ramirez was convicted, making it a criminal offense if
“without the effective consent of the owner, the person . . . enters a habitation,
or a building (or any portion of a building) not then open to the public, with
intent to commit a felony, theft, or an assault.” 17
       Molina-Ramirez’s unauthorized entry into a habitation—whether by
breaking and entering or entering without permission—fits the requirement of
8 U.S.C. § 16(b) that an aggravated felony present a risk that physical force
would be used against the person or property of another. The conviction records
show that Molina-Ramirez was sentenced to a year of incarceration for his home
invasion conviction. Consequently, the BIA properly concluded that his offense
is an aggravated felony within the meaning of section 101(a)(43)(F) of the INA,


       14
            875 F.2d 1110, 1112 (5th Cir. 1989).
       15
            Id. at 1113.
       16
          40 F.3d 102, 104 (5th Cir. 1994); see also United States v. Claiborne, 132 F.3d 253,
256 (5th Cir. 1998) (emphasizing that anyone who commits unauthorized entry of an inhabited
dwelling poses a risk of force).
       17
            TEX . PENAL CODE § 30.02.

                                               7
   Case: 09-60070       Document: 00511009804       Page: 8    Date Filed: 01/21/2010

                                       No. 09-60070

thereby making Molina-Ramirez ineligible for cancellation of removal.
                                              C
      Molina-Ramirez further contends that, even if his offense constitutes an
aggravated felony, he is still eligible to apply for an INA § 212 waiver to cure
removability. Molina-Ramirez repeats two separate arguments that he made in
his appeal before the BIA. First, Molina-Ramirez argues that, because he was
detained and charged by the DHS in 2005 as an “arriving alien,” he is eligible for
a § 212(h) waiver. This follows, he reasons, because, as the IJ acknowledged,
arriving aliens are not statutorily barred from seeking § 212(h) waivers.
However, the case law Molina-Ramirez cites in support of this claim does not
support his argument.
      In In re Abosi, the BIA concluded that an LPR incorrectly charged as an
arriving alien by immigration authorities in a removal proceeding did not suffer
a change in legal status.18 Because LPR status cannot be terminated until a
removal order becomes final, a charging mistake is without legal effect, and does
not thereby convert an LPR into an arriving alien.19 Molina-Ramirez’s argument
that this case stands for the proposition that the DHS’s 2005 charging mistake
entitles him to an arriving-alien waiver is without merit. The DHS’s charging
mistake in 2005 did not strip Molina-Ramirez of his LPR status.20
      Similarly, neither In re Sanchez 21 nor In re Millard 22 stand for the
proposition that Molina-Ramirez’s inadmissibility in 2005 provides grounds for


      18
           24 I. & N. Dec. 204, 206 (BIA 2007).
      19
           Id.
      20
          Moreover, as the BIA observed, because the 2005 NTA was never filed with the
Immigration Court, there was never a final decision on the merits, eliminating the grounds
for any res judicata issues.
      21
           17 I. & N. Dec 218 (BIA 1980).
      22
           11 I. & N. Dec. 175 (BIA 1965).

                                              8
   Case: 09-60070         Document: 00511009804         Page: 9    Date Filed: 01/21/2010

                                            No. 09-60070

a waiver under § 212(h). These cases hold only that aliens are not barred from
seeking § 212(h) waivers simply because they were inadmissible at the time of
their original or subsequent entries.23 Nothing in these cases, however, supports
Molina-Ramirez’s argument that § 212(h)’s specific prohibition against granting
waivers to aliens with aggravated-felony convictions may be ignored in his case.
Unlike the petitioners in Sanchez and Millard who did not commit such crimes,
the specific grounds of Molina-Ramirez’s inadmissibility cannot be cured through
application of § 212(h).
       Finally, Molina-Ramirez’s attorney conceded before the IJ that he had
been admitted as an LPR in 1986. Admissions of fact by counsel in deportation
hearings are binding.24 The BIA correctly affirmed the IJ’s decision that Molina-
Ramirez did not qualify as an “arriving alien” for the purposes of § 212(h) waiver
eligibility.
       Alternatively, Molina-Ramirez argues that his eligibility for a waiver is
compelled by this court’s opinion in Martinez v. Mukasey.25 In that case, we
considered the definition of “admitted” under § 212(h). The provision at issue
provides in relevant part:
                 No waiver shall be granted under this subsection in the
                 case of an alien who has previously been admitted to
                 the United States as an alien lawfully admitted for
                 permanent residence if . . . since the date of such
                 admission the alien has been convicted of an
                 aggravated felony . . . .26
The court stated that “for the § 212(h) bar to apply: when the alien is granted
permission, after inspection, to enter the United States, he must then be

       23
            Sanchez, 17 I. & N. Dec. at 222-23; Millard, 11 I. & N. Dec. at 177-78.
       24
            See Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1141 (9th Cir. 1981).
       25
            519 F.3d 532 (5th Cir. 2008).
       26
            8 U.S.C. § 1182(h).

                                                 9
  Case: 09-60070           Document: 00511009804     Page: 10   Date Filed: 01/21/2010

                                        No. 09-60070

admitted as an LPR.”27 However, the court reasoned that the plain language of
the statue did not encompass aliens like Martinez who had adjusted their status
subsequent to their entry into the United States.28
      The INA provides the following definition: “The terms ‘admission’ and
‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer.”29
Citing the plain language of 8 U.S.C. § 1182(h), the Martinez court drew a strong
distinction between those aliens “admitted” into the United States as LPRs and
those like Martinez who were admitted and became LPRs under other
circumstances.           As the court explained, “[u]nder this statutory definition,
‘admission’ is the lawful entry of an alien after inspection, something quite
different, obviously, from post-entry adjustment of status, as done by
Martinez.” 30 Because adjustment is a procedure by which an alien becomes an
LPR without having to first leave the country, the Martinez court concluded that
the relevant “statutes do not provide that adjustment constitutes being
‘admitted’ for the purpose of determining eligibility for a waiver under
§ 212(h).” 31 Therefore, the Martinez court held that aliens who adjust post-entry
to LPR status are not barred from seeking a waiver of inadmissibility under
§ 212(h).32
      Molina-Ramirez argued before the BIA that the IJ erred in finding that he
was admitted to the United States as an LPR in 1986. Instead, Molina-Ramirez


      27
           Martinez, 519 F.3d at 544.
      28
           Id.
      29
           8 U.S.C. § 1101(a)(13)(A) (emphasis added).
      30
           Martinez, 519 F.3d at 544.
      31
           Id. at 546.
      32
           Id.

                                             10
  Case: 09-60070          Document: 00511009804      Page: 11     Date Filed: 01/21/2010

                                      No. 09-60070

asserted that the IJ should have found that he entered the country in 1978 and,
like the petitioner in Martinez, adjusted his status through marriage to a United
States citizen. The BIA properly rejected this argument.
       In Martinez, the petitioner provided substantial evidence that he had
“adjusted” his status within the United States after being granted legal entry to
the country as a non-immigrant visitor.33 No such showing was made before the
IJ regarding Molina-Ramirez. Although Molina-Ramirez argued before the BIA
that he first entered the United States in 1978, nothing in the record indicates
how or when Molina-Ramirez crossed the border, and he provided no documents
or affidavits to the IJ supporting his claim that he “adjusted” his status.
Moreover, the BIA may reasonably have concluded that Molina-Ramirez could
not satisfy Martinez’s requirements for a § 212(h) waiver because of his counsel’s
concession that Molina-Ramirez was “admitted to the United States at San
Ysidro, California on or about September 30, 1986, as a lawful permanent
resident alien.”
       “If the evidence indicates that one or more of the grounds for mandatory
denial of the application for relief may apply, the alien shall have the burden of
proving by a preponderance of the evidence that such grounds do not apply.”34
Because the BIA rejected Molina-Ramirez’s argument that he adjusted to LPR
status, Molina-Ramirez cannot qualify for a § 212(h) waiver under this court’s
precedent in Martinez.          Consequently, the BIA properly ruled in ordering
Molina-Ramirez removed from the country as an alien convicted of an
aggravated felony.
                                     *       *       *


       33
            Id. at 536.
       34
           8 C.F.R. § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4)(A)(i) (stating that an alien
applying for relief from removal has the burden of proof to establish that the alien is
statutorily eligible for relief).

                                             11
  Case: 09-60070   Document: 00511009804   Page: 12   Date Filed: 01/21/2010

                               No. 09-60070

     For the foregoing reasons, we AFFIRM the judgment of the Board of
Immigration Appeals.




                                    12
