Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Eric H. Holder, Jr. has been substituted for former Attorney

General Michael B. Mukasey as the respondent.

United States Court of Appeals

For the First Circuit

No. 08-1442

VINICIO MEJIA-RODRIGUEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, *

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Selya and Boudin, Circuit Judges.

Jose A. Espinosa for petitioner.

James E. Grimes, Senior Litigation Counsel, Office of

Immigration Litigation, Gregory G. Katsas, Assistant Attorney

General, Civil Division, and Linda S. Wernery, Assistant

Director, for respondent.

February 25, 2009
-2-

LYNCH, Chief Judge. In this immigration case, petitioner

Vinicio Mejia-Rodriguez seeks review of a final order of removal,

arguing that the Board of Immigration Appeals ("BIA") erred in

finding that (1) he was not eligible for an exception to the

inadmissibility rules for those who have committed certain crimes

and that (2) he was ineligible for discretionary relief from

removal by the Attorney General. The petition does involve one

issue which this court has not addressed before: the definition of

"maximum penalty possible" in 8 U.S.C. § 1182(a)(2)(A)(ii)(II), the

petty offense exception to 8 U.S.C. § 1182(a)(2)(A)(i)(I), which

otherwise renders inadmissible aliens who have committed crimes of

moral turpitude. On that point, we hold that the term "maximum

penalty possible" is determined in reference to the relevant

statutory range of imprisonment and not the federal Sentencing

Guidelines range. In this we agree with the Ninth Circuit Court of

Appeals. See Mendez-Mendez v. Mukasey, 525 F.3d 828, 832-35 (9th

Cir. 2008). We deny the petition for review.

Mejia-Rodriguez, who is from the Dominican Republic,

became a lawful permanent resident of the United States on August

14, 1994. He abused this privilege by committing two felonies. He

was convicted on May 28, 1999 of selling telecommunication devices

altered to obtain unauthorized use of services, in violation of 18

U.S.C. § 1029(a)(7), and of conspiracy to commit fraud in

connection with access devices, in violation of 18 U.S.C.
-3-

§ 1029(b)(2). These crimes require proof of an intent to defraud.

The statutory maximum sentence was ten years' imprisonment for the

first offense, id. § 1029(c)(1)(A)(i), and five years' imprisonment

for the second, id. § 1029(b)(2), (c)(1)(A)(i). His actual

sentence was three years' probation.

Mejia-Rodriguez later left the United States and then

applied for admission into the country at Logan Airport in Boston

on February 28, 2005. Lawful permanent residents who have

committed an offense under 8 U.S.C. § 1182(a)(2) are considered to

be arriving aliens when they present themselves for admission into

the United States. See 8 U.S.C. § 1101(a)(13)(C)(v); De Vega v.

Gonzales, 503 F.3d 45, 46-47 (1st Cir. 2007). Because of his

criminal convictions, Mejia-Rodriguez was served with a Notice to

Appear, alleging that he was inadmissible and removable from the

United States as an alien who has been convicted of a crime

involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). There

is no dispute that he had been convicted of crimes involving moral

turpitude.

The removal hearings before an Immigration Judge ("IJ")

were held on November 23, 2005, and over six months later, on June

15, 2006. Mejia-Rodriguez admitted the factual allegations and

conceded removability. Not surprisingly, the IJ's June 15, 2006

decision found that Mejia-Rodriguez was removable. The decision

also held that Mejia-Rodriguez was ineligible for cancellation of
Mejia-Rodriguez later revealed that he and his wife were 1

divorced.

-4-

removal under 8 U.S.C. § 1229b(a) because his time period of

physical presence and residence in the United States stopped as a

matter of law in 1997 when he committed his criminal offenses, and

those offenses were less than five years from the date of MejiaRodriguez's admission into the United States as a lawful permanent

resident. Furthermore, the IJ found that Mejia-Rodriguez was

ineligible for the discretionary relief of waiver of

inadmissibility under 8 U.S.C. § 1182(h) because no visa petition

had been filed on his behalf and because he could not meet the

family hardship requirement because he was estranged from his

wife.1

Mejia-Rodriguez appealed to the BIA on July 13, 2006,

arguing he was not removable because he fit within the petty

offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). He

argued that the BIA must measure the "maximum penalty possible"

under the exception by reference only to the Sentencing Guidelines,

which suggested a sentence of four to ten months of confinement.

The BIA rejected this argument and affirmed his ineligibility for

cancellation of removal under § 1229b(a) and waiver under

§ 1182(h).

Mejia-Rodriguez's timely petition for review to this

court makes three arguments. First, he claims that had he
Mejia-Rodriguez does not challenge the denial of 2

cancellation of removal under § 1229b(a).

Mejia-Rodriguez describes his claim in terms of due 3

process, but it is more fairly characterized as an equal protection

claim. See Malagon de Fuentes v. Gonzales, 462 F.3d 498, 503 (5th

Cir. 2006).

-5-

remained in the United States and not gone out of the country, he

would have been ineligible for removal and thus that his

constitutional rights under the Equal Protection Clause have been

violated because the distinction was irrational. Second, he argues

that the petty offense exception must be read in light of the

Guidelines and not the statutory maximums. Third, he alleges that

he was eligible for a waiver under 8 U.S.C. § 1182(h) because he

has "at least one U.S. citizen child."2

We have jurisdiction to review the first two claims but

not the third. Our review in this case, under the REAL ID Act, is

restricted to constitutional claims or questions of law. See 8

U.S.C. § 1252(a)(2)(C), (a)(2)(D); De Araujo v. Gonzales, 457 F.3d

146, 153 (1st Cir. 2006); see also Conteh v. Gonzales, 461 F.3d 45,

63-64 (1st Cir. 2006)(discussing restrictions on judicial review in

cases involving waiver of inadmissibility under § 1182(h)).

The equal protection argument, cursorily made, is 3

without merit, and is based on mistakes of both law and fact. To

start, Mejia-Rodriguez's argument is based entirely on the wrong

section of the immigration statute. Mejia-Rodriguez asserts that

the application of 8 U.S.C. § 1182(a)(2)(A)(i)(I) violated his
-6-

constitutional rights because, if he had remained in the country,

he would not have been subject to removal, and there is no

justification for distinguishing between him and a lawful permanent

resident who had not left as he did. But § 1182(a)(2)(A)(i)(I) is

not relevant to this distinction. What is relevant is 8 U.S.C.

§ 1101(a)(13)(C)(v), which is the provision that renders him an

"arriving alien" and so subject to charges of inadmissibility.

Mejia-Rodriguez's argument is also based on a factual

mistake. He would have been subject to removal even if he had

remained in the United States, given that he had been convicted of

a crime involving moral turpitude within five years of his

admission. See 8 U.S.C. § 1227(a)(2)(A)(i).

In any event, these congressionally determined categories

are subject at most to rational basis review. See Almon v. Reno,

192 F.3d 28, 31 (1st Cir. 1999); see also Malagon de Fuentes v.

Gonzales, 462 F.3d 498, 503-04 (5th Cir. 2006). A lawful permanent

resident who departs the country and attempts to return is not

similarly situated to a lawful permanent resident who never left.

See Landon v. Plasencia, 459 U.S. 21, 31 (1982); United States ex

rel Volpe v. Smith, 289 U.S. 422, 425-26 (1933); Malagon de

Fuentes, 462 F.3d at 503-04.

His second argument concerning interpretation of the

petty offense exception involves a pure issue of law and is

reviewed de novo. See Elien v. Ashcroft, 364 F.3d 392, 396 (1st
-7-

Cir. 2004); see also Mendez-Mendez, 525 F.3d at 832. We will put

aside the fact that the petty offense exception only applies to

aliens who have committed only one crime, see 8 U.S.C. §

1182(a)(2)(A)(ii), (a)(2)(B), and Mejia-Rodriguez has committed

two, to reach the merits of his argument. We will also set aside

the fact that he conceded removability before the IJ and that binds

him on the merits. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th

Cir. 2006); Selimi v. INS, 312 F.3d 854, 860 (7th Cir. 2002).

The relevant portion of the petty offense exception

provides that the inadmissibility rule for an alien who committed

a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I),

shall not apply if:

The maximum penalty possible for the crime of

which the alien was convicted . . . did not

exceed imprisonment for one year and, if the

alien was convicted of such crime, the alien

was not sentenced to a term of imprisonment in

excess of 6 months . . . .

8 U.S.C. § 1182(a)(2)(A)(ii)(II). The statute itself makes no

reference to the Sentencing Guidelines. The language of the

statute plainly refers to the "maximum penalty possible" and that

maximum is set by statute. That maximum possible punishment is

for "the crime of which the alien was convicted," a reference again

to the statute of conviction. See Mendez-Mendez, 525 F.3d at 832-

35.

The fact that Mejia-Rodriguez was not actually sentenced

to confinement of less than a year is irrelevant. The statutory
-8-

language is plain and requires rejection of his argument. See

Aquino-Encarnacion v. INS, 296 F.3d 56, 57 (1st Cir. 2002) (per

curiam).

Mejia-Rodriguez's third argument is that he was eligible

for a waiver under 8 U.S.C. § 1182(h) because he has a child who is

a U.S. citizen. This newfound claim is based on a factual

assertion that was not presented to the agency. Mejia-Rodriguez

has thus failed to exhaust his administrative remedies. See Silva

v. Gonzales, 455 F.3d 26, 28-29 (1st Cir. 2006). And had any

discretionary decision been made on the facts of his case, this

would not be subject to judicial review, given the restraints of 8

U.S.C. § 1252(a)(2). See Conteh, 461 F.3d at 63-64.

The petition for review is denied.