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Corona-Mendez v. Holder

February 3, 2010

J. AMPARO CORONA-MENDEZ, PETITIONER,
v.
ERIC HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review from the Board of Immigration Appeals Agency No. A75-100-704.

The opinion of the court was delivered by: Cudahy, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 14, 2009-Seattle, Washington

Before: Richard D. Cudahy,*fn1 Senior Circuit Judge, Johnnie B. Rawlinson and Consuelo M. Callahan, Circuit Judges.

OPINION

The question presented here is whether the Board of Immigration Appeals (Board) erred in holding that the petitioner was not eligible for multiple waivers of removability and inadmissibility and thereby erred in denying petitioner's application.

I.

Jose Amparo Corona-Mendez (Corona-Mendez), a native and citizen of Mexico, began illegally entering the United States to work in 1956, when he was about 20 years old. At the time of Corona-Mendez's hearing before the IJ in the present case, Corona-Mendez worked full-time for Mt. Vernon Nursery, and, prior to that, he worked at a dairy farm for eight years. He married Ofelia Sanchez de Corona, a lawful permanent resident, and together they have nine children, all of whom live in the United States and most of whom have status in the United States. Corona-Mendez has eight siblings that all live in the United States with legal status.

Corona-Mendez's interactions with the United States immigration authorities began in 1993. That year, he was stopped by the police for driving under the influence. He was taken to jail and, while there, was detained by immigration officials. He appeared before an Immigration Judge (IJ) and then was removed to Mexico. He returned to the United States either in 1993 or 1994. In 1996, he applied for and received lawful permanent resident status. He filled out the application with the assistance of his wife and son and did not indicate that he had been deported. In 2003, he applied to become a naturalized citizen but again did not indicate that he had been deported.

In March 2005, the United States Department of Homeland Security issued Corona-Mendez a Notice to Appear before an IJ to answer charges that he was subject to removal because he procured a status adjustment by fraud or willful misrepresentation of a material fact.*fn2 In August, the DHS added two additional charges of removability because he had been ordered removed within the previous 10 years,*fn3 and because he was an alien in the United States in violation of the law.*fn4

At the hearing, Corona-Mendez conceded removability. He argued instead that he was eligible for relief based on a combination of an I-212 waiver for a nunc pro tunc (retroactive) grant of permission to reapply for admission into the United States in conjunction with either (1) a waiver of deportability for fraud under INA § 237(a)(1)(H) (237(a)(1)(H) waiver), 8 U.S.C. § 1227(a)(1)(H); or (2) an adjustment of status predicated on a waiver of inadmissibility for fraud or willful misrepresentation of a material fact if the alien demonstrates extreme hardship to the alien's citizen or lawfully resident spouse or parent under INA § 212(i) (Section 212(i) waiver), 8 U.S.C. § 1182(i). Corona-Mendez contended that either of these two avenues of relief would allow him to remain in the United States by removing all of his grounds of inadmissibility based on his prior deportation and misrepresentations.

In January 2007, the IJ issued a written decision denying Corona-Mendez's application and ordering him removed to Mexico. The IJ declined to adjust status based on CoronaMendez's eligibility for a 212(i) waiver because he had not demonstrated that his removal would result in the requisite hardship to his legal permanent resident wife. The IJ decided that, based on the "negative factors" in his case, including his multiple misrepresentations and convictions for driving under the influence, even if he were eligible for a 212(i) waiver based on extreme hardship, he should be denied the waiver as a matter of discretion. The Board affirmed the IJ's decision to deny the waiver only as a matter of discretion. Without a 212(i) waiver, the Board concluded, Corona-Mendez was ineligible for an adjustment of status and his request to re-enter nunc pro tunc was denied because granting such relief would not completely resolve his case. As to the avenue based on the 237(a)(1)(H) waiver of fraud, the IJ found, and the Board upheld the determination, that Corona-Mendez was not otherwise admissible because of his prior deportation and therefore the 237(a)(1)(H) waiver was unavailable.

Corona-Mendez then appealed to this court, arguing that he should be able to "stack" his waivers to remove all grounds of inadmissibility. We disagree. We therefore deny the petition for review in part and, for reasons discussed ...


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