### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60274 Summary Calendar

MELVIN GUARDADO GARCIA,
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. A-043-993-837

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Melvin Guardado Garcia, a native a nd c i tizen of El S alvador, p etitions for review of a final order of the Board of Immigration Appeals (BIA) dismissing his appeal o f the i m m igration judge’s (IJ) final order of removal and denial o f a waiver of admissibility under section 212(c) of the Immigration and Nationality Act (INA). The BIA agreed with the IJ’s finding that Garcia fraudulently obtained lawful permanent resident (LPR) status through a material misrepresentation and, as such, was not eligible for a § 212(c) waiver. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Garcia contends that the T e x a s offense of burglary of a habitation is a divisible statute that encompasses acts that d o a n d d o not qualify as acts of moral turpitude. He further contends that neither the IJ or the BIA conducted the proper analysis to determine whether he was c onvicted under a subsection of the T exas statute that constituted a crime involving m oral turpitude. He thus asserts tha t t h e I J ’ s finding that he committed fraud by not disclosing a conviction for a crime of moral turpitude i n his application for an immigrant visa

was erroneous. We review constitut i o n a l claims and questions of law de novo. Mai v. Gonzales , 473 F.3d 162, 164 ( 5th Cir. 2006). We review factual d eterminations under the substantial evidence standard and the BIA’s findings wi l l not be reversed “unless the evidence is so compelling that no r ea s o n able fact finder could f ail t o f i n d otherwise.” Lopez-Gomez v. Ashcroft , 263 F.3d 442, 444 (5th Cir. 2001) (internal quotations and citations omitted). Relief under § 212(c) ma y not be granted t o an alien who “has not been l a w f u lly admitted f

or permanent residence.” 8 C.F.R. § 1212.3(f)(1). T h e statutory phrase “lawfully admitted for permanent residence” does n ot apply to aliens who “obtained their permanent resident status by f raud, or had o therwise not been entitled to it.” In re Koloamatangi , 23 I&N Dec. 548, 550 ( BIA 2003). Contrary t o Garcia’s a sse r t i o n, the act of fraud the I J determined Garcia committed was his failure to disclose “his arrest a nd guilty plea” to the crime of burglary of a habitation. The BIA affirmed the IJ’s f inding that Garcia’s “failure to disclose his conviction when he applied for an i mmigrant visa constitute[d] a

w i l l f u l misrepresentation of a material fact.” As the IJ determined, Garcia’s felony burglary conviction would hav e r endered him ineligible to obtain LPR status at the time he filed his visa application. See INA § 245A(b)(1)(C), codified at 8 U.S.C. § 1255a(b)(1)(C) (requiring a n a l i en seeking to adjust his status to show that he has n o t been convicted of a felony). Thus, Garcia’s a rgument, which focuses on whether his burglary c onviction constitutes a crime i nvolving
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moral turpitude, is misplaced since it was not the only basis for finding Garcia removable and, as such, ineligible for a § 212(c) waiver. Garcia d oes not contest the existence of his burglary c onviction, nor the IJ’s finding that h e “knowingly, willfully, or fraudulently” failed t o disclose it in his i mmigrant visa application in o rder to o b t a i n L PR status. Because Garcia misrepresented h is c riminal history and obtained his LPR status due to this misrepresentation, he was not

“ l awfully admitted f

or p ermanent residence.” See Koloamatangi , 23 I&N De c . at 550. As such, the BIA properly determined that Garcia was not statutorily eligible for a § 212(c) waiver. See § 1212.3(f)(1). Ac c o r d i n gl y , his p etition for review is DENIED.

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