### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 60464 Summary Calendar

ROGELIO MENDOZA CHAVEZ , Petitioner

v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL , Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A022 864 156

Before BARKSDALE, HAYNES, and HIGGINSON , Circuit Judges. PER CURIAM: * Rogelio Mendoza Chavez, a native and citizen of Mexico, challenges the determination of the Board of Immigration Appeals (BIA) that he is ineligible for a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). Underlying this challenge is Mendoza ’s admission that , at the time he adjusted his status to that of a lawful permanent resident in 1979, he misrepresente d his status as being unmarried. ( Because Mendoza failed to raise before the BIA his

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 2, 2017 Lyle W. Cayce Clerk Case: 16-60464 Document: 00514099950 Page: 1 Date Filed: 08/02/2017N o. 16

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2 contention that he was denied due process, he did not meet the statutory mandate to exhaust ad ministrative remedies, and we lack jurisdiction over the issue. See 8 U.S.C. § 1252(d)(1); Omari v. Holder , 562 F.3d 314, 318

– 19 (5th Cir. 2009). ) When the Department of Homeland Security (DHS) served Mendoza with a Notice to Appear in 2015

— charging him w ith removability pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who, after admission, had been convicted of a violation of a law or regulation relating to a cont rolled substance

— Mendoza sought a § 1227(a)(1)(H) fraud waiver of removal on the grounds that he misrepresented his mari t a l status in becoming a lawful permanent resident. DHS , however, refused to charge Mendoza as inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) based on his admitted fraud or misrepresentation. Instead, DHS continued to maint ain Mendoza was removable , pursuant to § 1227(a)(2)(B)(i), due to his controlled

- substance conviction

. The immigration judge (IJ) ordered Mendoza removed to Mexico, finding he was ineligible for a § 1227(a)(1)(H) fraud waiver of removal because he had “not been charged with and [was] not subject to removal on the ground that he commi tted fraud or misrepresentation ”

. The IJ further ruled DHS was not obligated to charge Mendoza with §§ 1227(a)(1)(A) and 1182(a)(6)(C)(i) “for misrepresenting material fact s on his application for adjustment” merely because Mendoza “admitted he committed fraud or misrepresentation in obtaining adjustment of status ”

. The BIA dismisse d Mendoza’s appeal, ruling the § 1227(a)(1)(H) fraud waiver “is to be used to prevent removal ‘on the grounds ’ of misrepresentation or fraud ” , and Mendoza did “not face removal on the grounds of misrepresentation or fraud; rather he is re movable based on a drug offense ”

. Therefore , the BIA ruled Mendoza was “ineligible to seek a fraud waiver unde r Case: 16-60464 Document: 00514099950 Page: 2 Date Filed: 08/02/2017N o. 16

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3 [§ 1227(a)(1)(H)] as his sole ground of removability relates to a drug offense rather tha n fraud or misrepresentation ”

. Mendoza does not challenge the drug

- offense removability. Instead, he contends the BIA erred in ruling he was ineligible for a § 122 7(a)(1)(H) fraud waiver on the ground that he was not charged with removability based on fraud or mis representation. Because the IJ ’ s underlying decision impacted the BIA’s ruling, we will consider the IJ’s decision in reviewing Mendoza’s claim. E.g., Zh u v. Gonzales , 493 F. 3 d 588, 593 (5th Cir. 2007). T his question of law is reviewed de novo , “deferring to the BIA’s interpretation of the statutes and regulations it administers ”

. Vasquez

- Martinez v. Holder , 564 F.3d 712, 715 (5th Cir. 2009). Section 12 27(a)(1)(H) provides an alien shall be eligible for a waiver of “[t]he provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i)” to the extent the alien, inter alia , “was otherwise admissible to the United States at the time of such admission” , but fo r “fraud or misrepresentation ”

. Section 1182(a)(6)(C)(i)
states: “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided und er this chapter is inadmissibl e ”

. In Reid v. INS , 420 U.S. 619 (1975), the Court held the fraud waiver applied only in two situations: (i) where deportation is sought on the specific grounds of failure to comply with quota restrictions, which the Court had previously addressed in INS v. Errico , 385 U.S. 214 (1966) ; and (ii) where deportation is sought on the grounds that the alien was ineligible for admission due to fraud or misrepresentation. Reid , 420 U.S. at 629

– 30 . To hold otherwise Case: 16-60464 Document: 00514099950 Page: 3 Date Filed: 08/02/2017N o. 16

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4 would lead to the illogical conclusion that the fraud waiver “waives a substantive ground for deportation . . . if the alien can affirmatively prove his fraudulent intent at the time of entry, but grants no relief to aliens” otherwise qualifying for the waiver “who are unable to satisfactorily establis h their dishonesty ”

. Reid , 420 U.S. at 629. B y enacting the fraud waiver, Congress “did not intend to arm the dishonest alien seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated t o fraud”. Id. at 630

– 31. Moreover, in holding the petitioners in Reid did not qualify for the waiver, the Court implicitly held it is within the INS’s discretion whether to charge an alien with fraud or misrepresentation, and the exercise of such discret ion could ultimately determine whether the waiver was available. Id. at 623 (if “the INS were seeking to deport petitioners on” the grounds of fraud or misrepresentation, “they would be entitled to have applied to them the provisions of” the fraud waiver, but the INS instead opted to deport petitioners on othe r grounds). DHS did not seek to remove Mendoza on the specific grounds of failure to comply with quota restrictions. See Reid , 420 U.S. at 623. Further, given the Reid rationale , DHS was not obligated to charge Mendoza with removability under § 1182(a)(6)(C)(i) based on his admitted fraud or misrepresentation

. Because Mendoza was not charged with removability for fraud or misrepresentation

— and his sole ground of removability was for a control led

- substance conviction, see § 1227(a)(2)(B)(i)

— he was ineligible for a § 1227(a)(1)(H) fraud waiver. DENIED. Case: 16-60464 Document: 00514099950 Page: 4 Date Filed: 08/02/2017