     Case: 11-60506     Document: 00511886276         Page: 1     Date Filed: 06/13/2012




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

                                                                            FILED
                                                                           June 13, 2012
                                     No. 11-60506
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JULIO CESAR TZOC,

                                                  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. A091 876 831


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Julio Cesar Tzoc, a native and citizen of Guatemala, challenges the
determination of the Board of Immigration Appeals (BIA) that he is ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a) and for a waiver of
removability under 8 U.S.C. § 1227(a)(1)(H). He alleges that he obtained lawful
permanent resident (LPR) status in 1990 under the Immigration Reform and
Control Act of 1986 (IRCA) § 201(a), 8 U.S.C. § 1255a, which allows the Attorney
General to grant an adjustment to LPR status if the alien satisfies various

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60506

conditions, including establishing “that he entered the United States before
January 1, 1982.” § 1255a(a)(2)(A). In 2004, Tzoc visited Guatemala and was
allowed to reenter the United States without formal admission. He pleaded
guilty to possession of cocaine. In 2005, the Department of Homeland Security
(DHS) initiated removal proceedings against him, charging that he was
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of a
controlled substance offense.
      After several rounds of proceedings before the immigration judge (IJ)
followed by appeals to the BIA, the IJ sustained the charge and ultimately
ordered Tzoc removed to Guatemala. The IJ found that he was ineligible for
cancellation of removal under § 1229b(a) because Tzoc testified at a hearing
before the IJ in 2007 that he had lived in the United States for approximately
21 years and that he came to the United States in 1986, when he was 17 years
old. At the time of that proceeding, the case had been remanded to allow Tzoc
to explain this prior testimony or provide other evidence to show that he actually
entered at the required time (before January 1, 1982). In the final proceeding
before the IJ, Tzoc failed to present any such evidence. The IJ also found that
he was ineligible for a waiver of removability under § 1227(a)(1)(H). The BIA
dismissed his appeal.
      Tzoc argues that the BIA erred in finding him statutorily ineligible for
cancellation of removal. We review this question of law de novo, “deferring to
the BIA’s interpretation of the statutes and regulations it administers.”
Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009).
      In order to be eligible for cancellation of removal, an alien must have been
“lawfully admitted for permanent residence” for at least five years. § 1229b(a)(1).
Tzoc argues that his IRCA adjustment in 1990 shows that he satisfied this
requirement. However, the Immigration and Nationality Act (INA) defines the
phrase “lawfully admitted for permanent residence” as “the status of having
been lawfully accorded the privilege of residing permanently in the United

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States as an immigrant in accordance with the immigration laws, such status
not having changed.” § 1101(a)(20) (emphasis added). If Tzoc first entered the
United States after January 1, 1982, as he testified repeatedly before the IJ,
then his IRCA adjustment to LPR status was not “in accordance with the
immigration laws,” § 1101(a)(20); see § 1255a(a)(2)(A). “If, as a matter of law,
[the alien] was not eligible to receive LPR status [when he acquired it], then he
could not, and therefore, did not lawfully acquire it—absent which he is not
eligible for cancellation of removal.” Ramos-Torres v. Holder, 637 F.3d 544, 548
(5th Cir. 2011); see also In re Longstaff, 716 F.2d 1439, 1441-42 (5th Cir. 1983)
(rejecting Tzoc’s interpretation of the phrase “lawfully admitted for permanent
residence” in another INA provision, 8 U.S.C. § 1429).
      Tzoc contends that the BIA erroneously assigned him the burden of
proving that his prior IRCA adjustment was lawful. However, an alien applying
for relief from removal has the burden of proof to establish that he is statutorily
eligible for relief. § 1229a(c)(4)(A)(i); Ramos-Torres, 637 F.3d at 548. Even were
this not so, his own testimony that he first entered in 1986 provides some
evidence that he did not lawfully obtain LPR status; despite a remand in which
to offer contrary evidence, he failed to do so. Accordingly, his argument that the
DHS failed to show that he obtained his IRCA adjustment of status through
fraud or misrepresentation is misplaced. See also Longstaff, 716 F.2d at 1440
(holding that the alien was ineligible for naturalization even though “no evidence
suggest[ed]” that the alien “knew or had reason to know” that he was excludable
from the United States at the time of his original application for admission as
an LPR).
      Although Tzoc argues that the BIA violated the IRCA confidentiality
provision, that provision limits the Government’s use of “the information
furnished by the applicant pursuant to an application filed under this section.”
§ 1255a(c)(5)(A). Tzoc’s testimony during the 2007 removal hearing was not the



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information furnished by him pursuant to the application for an IRCA
adjustment, which he filed years earlier.
      Tzoc also challenges the BIA’s refusal to consider his request for a
§ 1227(a)(1)(H) waiver. Because the IJ’s decision impacted the BIA’s ruling, we
will consider the underlying decision of the IJ in reviewing this claim. See
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). Whether Tzoc
was eligible for the § 1227(a)(1)(H) waiver is a question of law, which we review
de novo. See Rana v. Holder, 654 F.3d 547, 549-52 (5th Cir. 2011).
      As the IJ found, such a waiver would not help Tzoc because he was not
subject to removal “on the ground” that he had committed fraud or
misrepresentation. § 1227(a)(1)(H). Although Tzoc assumes that the DHS’s
contention that his IRCA adjustment of status in 1990 was improper entails an
implicit allegation that he committed fraud or a willful misrepresentation in his
IRCA application, the DHS did not have to make such a charge because Tzoc had
the burden of proving that he was statutorily eligible for cancellation of removal.
See Vasquez-Martinez, 564 F.3d at 715. Rather, Tzoc’s own testimony gave rise
to a question regarding whether his IRCA adjustment to LPR status in 1990 was
lawful. See id.; Ramos-Torres, 637 F.3d at 548.
      PETITION DENIED.




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