684 F.3d 906
9th Cir.2012Background
- Rivera, a Mexican citizen, was convicted of armed robbery in California in 1981 and deported in 1984 after serving most of his sentence; he reentered the U.S. unlawfully twice since then.
- Removal proceedings began in 2004, Rivera admitted removability and sought adjustment of status to lawful permanent resident.
- His 1981 conviction rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I); he applied for a waiver under § 1182(h).
- An IJ required a waiver of inadmissibility under § 1182(h) and noted three prerequisites for adjustment: § 1182(h) waiver, § 1212.2 permission to reenter, and § 1182(i) waiver for a false citizenship claim; Rivera focused on § 1182(h).
- The BIA affirmed, applying § 1212.7(d)’s heightened hardship standard to Rivera’s case, and held hardships to Rivera and relatives were outweighed by his criminal conduct.
- The Ninth Circuit denied the petition, concluding the BIA properly applied § 1212.7(d) and that the regulation supplements, not supplants, the statutory hardship standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1212.7(d) govern waivers under §1182(h)(1)(A) and (B)? | Rivera argues §1212.7(d) cannot alter §1182(h) thresholds. | Holders argues §1212.7(d) applies to violent/dangerous crimes and aligns with Mejia. | Yes; §1212.7(d) applies to both waivers and does not alter the §1182(h) threshold. |
| Is the hardship standard under §1212.7(d) properly applied to Rivera and his relatives? | Rivera contends the standard improperly broadens who must suffer hardship. | BIA properly evaluated extraordinary hardship to Rivera and relatives. | Yes; the court upheld application of the hardship standard to the alien and his relatives. |
| Is the court's review properly focused on legal standards, not mere discretionary denial? | Rivera argues the court should reweigh discretion, not correct legal standard. | Government contends the issue is discretionary denial, within §1252(a)(2). | The court has jurisdiction to review the legal standard governing the waiver decision. |
Key Cases Cited
- Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007) (§1212.7(d) supplements, not alters, the extreme hardship standard)
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (de novo review of questions of law; interplay with regulations)