IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 and citizen of El Salvador, petitions for

review of a final order of the Board of Immigration Appeals (BIA) dismissing his

appeal of the immigration judge’s (IJ) final order of removal and denial of 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.

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2013

Lyle W. Cayce

Clerk

* 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. 12-60274

Garcia contends that the Texas offense of burglary of a habitation is a

divisible statute that encompasses acts that do and do 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 convicted under a subsection

of the Texas statute that constituted a crime involving moral turpitude. He thus

asserts that the IJ’s finding that he committed fraud by not disclosing a

conviction for a crime of moral turpitude in his application for an immigrant visa

was erroneous.

We review constitutional claims and questions of law de novo. Mai v.

Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). We review factual determinations

under the substantial evidence standard and the BIA’s findings will not be

reversed “unless the evidence is so compelling that no reasonable fact finder

could fail to find otherwise.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th

Cir. 2001) (internal quotations and citations omitted).

Relief under § 212(c) may not be granted to an alien who “has not been

lawfully admitted for permanent residence.” 8 C.F.R. § 1212.3(f)(1). The

statutory phrase “lawfully admitted for permanent residence” does not apply to

aliens who “obtained their permanent resident status by fraud, or had otherwise

not been entitled to it.” In re Koloamatangi, 23 I&N Dec. 548, 550 (BIA 2003). 

Contrary to Garcia’s assertion, the act of fraud the IJ determined Garcia

committed was his failure to disclose “his arrest and guilty plea” to the crime of

burglary of a habitation. The BIA affirmed the IJ’s finding that Garcia’s “failure

to disclose his conviction when he applied for an immigrant visa constitute[d] a

willful misrepresentation of a material fact.” As the IJ determined, Garcia’s

felony burglary conviction would have rendered 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 an alien seeking to adjust his status to

show that he has not been convicted of a felony). Thus, Garcia’s argument,

which focuses on whether his burglary conviction constitutes a crime involving

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No. 12-60274

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 does not contest

the existence of his burglary conviction, nor the IJ’s finding that he “knowingly,

willfully, or fraudulently” failed to disclose it in his immigrant visa application

in order to obtain LPR status. Because Garcia misrepresented his criminal

history and obtained his LPR status due to this misrepresentation, he was not

“lawfully admitted for permanent residence.” See Koloamatangi, 23 I&N Dec.

at 550. As such, the BIA properly determined that Garcia was not statutorily

eligible for a § 212(c) waiver. See § 1212.3(f)(1). Accordingly, his petition for

review is DENIED.

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