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Rafael Gerardo Rivera-Peraza v. Eric H. Holder Jr.

June 29, 2012

RAFAEL GERARDO RIVERA-PERAZA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A027-140-906

The opinion of the court was delivered by: W. Fletcher, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted November 14, 2011-Pasadena, California

Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and James K. Singleton, Senior District Judge.*fn1

Opinion by Judge William A. Fletcher

OPINION

Petitioner Rafael Gerardo Rivera-Peraza ("Rivera"), a native and citizen of Mexico, was convicted of armed robbery with a firearm in California in 1981. After serving most of his sentence, Rivera was deported in 1984. Since then, he has twice reentered this country without inspection. The government began a removal proceeding against Rivera in 2004. Rivera admitted removability and sought adjustment of status to lawful permanent resident. Because his 1981 conviction rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), Rivera applied for a waiver of inadmissibility under § 1182(h)(1)(A) and (B). See 8 U.S.C. § 1255(i)(2)(A) (requiring applicant for adjustment of status to permanent resident to be admissible to the United States).

The Immigration Judge ("IJ") denied Rivera's application for waiver of inadmissibility. The Board of Immigration Appeals ("BIA") affirmed, concluding that Rivera failed to satisfy the hardship standard of 8 C.F.R. § 1212.7(d). Rivera timely filed a petition for review. For the reasons set forth below, we conclude that the BIA properly applied § 1212.7(d) to Rivera. We therefore deny the petition.

I. Background

Rivera entered the United States in 1976 without inspection. Five years later, he was convicted of armed robbery under California Penal Code §§ 211 and 12022. He received a six-year sentence. In 1984, after serving almost four years, he was transferred to Immigration and Naturalization Service ("INS") custody and deported to Mexico. Two days later, he reentered the United States without inspection.

In 1989, still in the United States, Rivera met and married Edelmira Herrera. The couple has three United States citizen children: Edelmira Jr. born in 1990, Rafael Jr. born in 1992, and Gabriela born in 1994. In 1994, the INS approved an I-130 visa petition that Rivera's wife, Edelmira, Sr., filed on his behalf. In March 2003, Edelmira, Sr. became a naturalized United States citizen.

In 1991, Rivera made a day trip to Mexico to visit his sick mother. When he attempted to re-enter the United States he falsely claimed he was a United States citizen. The immigration officer refused admission. Rivera reentered the United States two days later without inspection.

On November 2, 2004, Rivera was served with a Notice to Appear and charged with removability for (i) being present in the United States without having been admitted or paroled and (ii) having been convicted of a crime involving moral turpitude. Rivera sought relief from removal through an application for adjustment of status under 8 U.S.C. § 1255(i). Because his wife was a United States citizen who had already obtained an I-130 visa for him, Rivera was potentially eligible for adjustment. However, Rivera's armed robbery conviction made him inadmissible under § 1182(a)(2)(A)(i)(I) (conviction of a crime of moral turpitude). Admissibility ...


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