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 misrepresented his status as 

being unmarried. (Because Mendoza failed to raise before the BIA his 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 2, 2017

Lyle W. Cayce

Clerk

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contention that he was denied due process, he did not meet the statutory 

mandate to exhaust administrative 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 with 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 controlled substance—

Mendoza sought a § 1227(a)(1)(H) fraud waiver of removal on the grounds that 

he misrepresented his marital 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 maintain 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 

committed 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 facts on his application for adjustment” merely 

because Mendoza “admitted he committed fraud or misrepresentation in

obtaining adjustment of status”.

The BIA dismissed 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 removable based on a drug offense”. 

Therefore, the BIA ruled Mendoza was “ineligible to seek a fraud waiver under 

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[§ 1227(a)(1)(H)] as his sole ground of removability relates to a drug offense 

rather than fraud or misrepresentation”.

Mendoza does not challenge the drug-offense removability. Instead, he 

contends the BIA erred in ruling he was ineligible for a § 1227(a)(1)(H) fraud 

waiver on the ground that he was not charged with removability based on fraud 

or misrepresentation. 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., 

Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). This 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 1227(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 for “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 

under this chapter is inadmissible”.

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

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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 establish their 

dishonesty”. Reid, 420 U.S. at 629. By 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 to 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 discretion 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 other 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 

controlled-substance conviction, see § 1227(a)(2)(B)(i)—he was ineligible for a 

§ 1227(a)(1)(H) fraud waiver.

DENIED.

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