FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE MEJIA, 

Petitioner, No. 04-74001

v. Agency No.  A76-613-262 ALBERTO R. GONZALES, Attorney

General,

Respondent. 

JORGE MEJIA, 

Petitioner, No. 04-76214

v. Agency No.  A76-613-262 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 10, 2007—Pasadena, California

Filed August 24, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and Ronald M. Whyte,* District Judge.

Opinion by Judge McKeown

*The Honorable Ronald M. Whyte, United States District Judge for the

Northern District of California, sitting by designation. 

10491
COUNSEL

Raul E. Godinez, Law Office of Raul E. Godinez, Los Angeles, California, for the petitioner. 

Peter Keisler, Assistant Attorney General, Department of Justice, Washington, DC; and Francesco Isgro and Papu Sandu,

Office of Immigration Litigation, Department of Justice,

Washington, DC, for the respondent. 

OPINION

McKEOWN, Circuit Judge: 

In late 2002, the Attorney General promulgated a rule

designed to guide Immigration Judges (“IJs”) in deciding

whether to grant waivers of inadmissibility to the United

States based on certain criminal grounds. The regulation provides that in cases where individuals have committed “violent

or dangerous crimes,” the Attorney General will not exercise

his discretion to grant waivers under 8 U.S.C. § 1182(h)

(known as § 212(h) relief) unless the individual can show “exceptional and extremely unusual hardship.” 8 C.F.R.

§ 212.7(d). 

In this appeal we consider, among other issues, Jorge Humberto Mejia’s (“Mejia”) challenge to the application of this

regulation to his removal proceedings. We hold that adoption

of 8 C.F.R. § 212.7(d) is a permissible exercise of the Attorney General’s authority and the regulation may be applied to

convictions that became final before the effective date of the

regulation. 

10494 MEJIA v. GONZALES
BACKGROUND

Mejia, a native and citizen of El Salvador, entered the

United States without inspection in the early 1980s. In 1988,

he married Angela Mejia, a United States citizen, and together

they have three daughters, two of whom are U.S. citizens.

Angela Mejia also has a daughter from a previous relationship, Gloria. 

In 1989, Mejia was convicted of violating provisions of the

California Penal Code that prohibit child molestation and

commission of lewd and lascivious acts upon a child. See Cal.

Penal Code § 288(a), (c). These convictions were based on

Mejia’s repeated molestation of his step-daughter, Gloria,

beginning when Gloria was twelve years old and continuing

for approximately three and a half years. This conduct

included slapping her, massaging her breasts, and fondling her

genitals. Mejia pleaded guilty and served seven months in jail.

In August 2000, the Immigration and Naturalization Service (“INS”) served Mejia with a Notice to Appear, charging

him as removable in violation of 8 U.S.C. § 1182(a)(2)(A)

(i)(I)1 and 8 U.S.C. § 1182(a)(6)(A)(i).2 At his initial hearing,

before the IJ, Mejia conceded removability and asked for time

to apply for an adjustment of status and a waiver of inadmissibility under Immigration and Nationality Act (“INA”)

§ 212(h), 8 U.S.C. § 1182(h).3

1

8 U.S.C. § 1182(a)(2)(A)(i) states that “[e]xcept as provided in clause

(ii), any alien convicted of, or who admits having committed acts which

constitute the essential elements of — (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to

commit such a crime . . . is inadmissible.” 

2

8 U.S.C. § 1182(a)(6)(A)(i) states that “[a]n alien present in the United

States without being admitted or paroled, or who arrives in the United

States at any time or place other than as designated by the Attorney General, is inadmissible.” 

3

8 U.S.C. § 1182(h) states in part that “[t]he Attorney General may, in

his discretion, waive the application of subparagraph[ ](A)(i)(I) . . . of subMEJIA v. GONZALES 10495
In April 2003, the IJ conducted a hearing on Mejia’s

§ 212(h) application. The IJ heard testimony from Mejia, his

brother, his wife, and two of his daughters, but not from his

stepdaughter Gloria, who declined to appear. The IJ denied

Mejia’s petition for a § 212(h) waiver on the merits. In denying relief, the IJ held that the standard set forth in Matter of

Jean, 23 I. & N. Dec. 373 (BIA 2002), and later codified at

8 C.F.R. § 212.7(d), governed Mejia’s application.4 Section

212.7(d) states that, in general, the Attorney General will not

exercise his discretion to grant a § 212(h) waiver in a case

involving a “violent or dangerous crime[ ]” unless the applicant shows “exceptional and extremely unusual hardship.” 8

C.F.R. § 212.7(d). Applying this standard, the IJ held that

Mejia failed to meet the high burden of exceptional and

extremely unusual hardship. The IJ acknowledged that this

was a “very difficult” case but concluded that denial was

appropriate because “the seriousness of the crime, even

though he has demonstrated rehabilitation, is just virtually

inexcusable.” The IJ also noted other factors that weighed

against waiver, including the circumstances of the crime,

Mejia’s denial of the events when confronted, and the fact

that Gloria did not testify on his behalf. 

The BIA adopted and affirmed the IJ’s decision, citing

Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). The BIA

also observed that all of Mejia’s convictions “constitute[d]

crimes of violence,” and held that Mejia failed to show exceptional or extremely unusual hardship. 

section (a)(2) of this section . . . if . . . in the case of an immigrant who

is the spouse, parent, son, or daughter of a citizen of the United States or

an alien lawfully admitted for permanent residence . . . it is established to

the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien . . . .” 

4The regulation also appears at 8 C.F.R. § 1212.7(d). Because the Federal Register refers to § 212.7(d), we use that reference throughout. See

Waiver of Criminal Grounds of Inadmissibility for Immigrants, 67 Fed.

Reg. 78,675-01 (Dec. 26, 2002). 

10496 MEJIA v. GONZALES
Mejia filed a timely motion to reopen with the BIA, which

was denied. Mejia petitions for review of both the denial of

§ 212(h) relief and his motion to reopen.5

ANALYSIS

I. ATTORNEY GENERAL’S AUTHORITY TO PROMULGATE 8

C.F.R. § 212.7(d)

[1] The first question we consider is whether the Attorney

General exceeded his statutory authority in adopting 8 C.F.R.

§ 212.7(d), the regulation that establishes a heightened burden

under § 212(h) for individuals who have committed violent or

dangerous crimes. Section 212(h)(1) states that the Attorney

General may, “in his discretion” waive the inadmissibility of

certain criminal aliens if “it is established to the satisfaction

of the Attorney General that the alien’s denial of admission

would result in extreme hardship to the United States citizen

or lawfully resident spouse, parent, son, or daughter of such

alien.” 8 U.S.C. § 1182(h)(1)(B). This waiver may be granted

if “the Attorney General, in his discretion, and pursuant to

such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or

adjustment of status.” Id. § 1182(h)(2). 

[2] In 2003, the Attorney General adopted 8 C.F.R.

§ 212.7(d), which states: 

The Attorney General, in general, will not favorably

exercise discretion under section 212(h)(2) of the

5

In his brief on appeal, Mejia does not discuss the arguments in his

appeal to the BIA as distinct from those in his motion to reopen. To the

extent that those issues overlap, we discuss them below. To the extent that

the motion to reopen discusses separate issues, any challenge to those

issues is waived. See Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir.

2001). 

MEJIA v. GONZALES 10497
[Immigration and Nationality] Act (8 U.S.C.

§ 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States,

or adjustment of status, with respect to immigrant

aliens who are inadmissible under section 212(a)(2)

of the [Immigration and Nationality] Act in cases

involving violent or dangerous crimes, except in

extraordinary circumstances, such as . . . cases in

which an alien clearly demonstrates that the denial of

[relief] would result in exceptional and extremely

unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a

showing of extraordinary circumstances might still

be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act. 

In issuing the regulation, the Attorney General emphasized

that “8 C.F.R. § 212.7(d) governs only the exercise of discretion under section 212(h)(2) of the Act, after the alien has met

the threshold requirement of section 212(h)(1) of the Act.” 67

Fed. Reg. at 78,677. 

Mejia argues that there is a disconnect between the language of the statute—“extreme hardship”—and the burden

imposed by the regulation—an “exceptional and extremely

unusual” hardship. His suggestion that the regulation exceeds

the bounds of the Attorney General’s authority misconceives

the statute as a whole and the discretion Congress has

entrusted to the Attorney General in this arena. 

We apply the “familiar Chevron two-step approach” to

determine whether 8 C.F.R. § 212.7(d) is valid. See MoralesIzquierdo v. Gonzales, 486 F.3d 484, 489 (9th Cir. 2007) (en

banc) (applying Chevron U.S.A. v. Natural Res. Def. Council,

467 U.S. 837 (1984), to determine whether an immigration

regulation was ultra vires). In the first step of the Chevron

inquiry, we ask “whether Congress has directly spoken to the

precise question at issue,” Chevron, 467 U.S. at 842—here,

10498 MEJIA v. GONZALES
whether Congress has established the standard that the Attorney General may use in exercising his discretion to grant

§ 212(h) relief. In fact, Congress has not spoken on this issue

as the statute does not address any standard for exercise of his

discretion under § 212(h)(2). 

Therefore, we assess “whether the agency’s [regulation] is

based on a permissible construction of the statute.” Chevron,

467 U.S. at 843; see also Morales-Izquierdo, 486 F.3d at 492.

“[T]he agency construction [need not be] the only one it permissibly could have adopted . . . , or even the reading the

court would have reached if the question initially had arisen

in a judicial proceeding.” Chevron, 467 U.S. at 843 n.11. 

The regulation speaks only to the exercise of discretion

under § 212(h)(2), not to the threshold determination of eligibility under § 212(h)(1). The Attorney General has not

changed or altered the statutory “extreme hardship” standard.

Instead, he has promulgated a regulation to guide IJs in the

way they exercise their relatively unfettered grant of discretion after the statutory requirements are met. Cf. 8 U.S.C.

§ 1252(a)(2)(B)(i) (insulating from judicial review discretionary determinations under 8 U.S.C. § 1182(h)). 

[3] The regulation does not alter or supercede the “extreme

hardship” standard. Rather, the regulation supplements and

gives definition to the standard to be applied in the cases of

individuals who have committed violent or dangerous crimes.

The Attorney General, in the exercise of his discretion, suggests that the equities disfavor, although do not preclude,

relief in this circumstance. Given Congress’s broad grant of

discretion, this approach is not inconsistent with the statute or

the Attorney General’s authority. 

As we noted in Ayala-Chavez v. INS, “[C]ourts have

always interpreted broadly the discretionary authority of the

Attorney General to grant or deny waiver of deportation. . . .

Inherent in this discretion is the authority of the Attorney

MEJIA v. GONZALES 10499
General and his subordinates to establish general standards

that govern the exercise of such discretion, as long as these

standards are rationally related to the statutory scheme.” 944

F.2d 638, 641 (9th Cir. 1991). In that case, we held that where

Congress had not specified any standards with respect to the

discretionary determination of eligibility for relief under former INA § 212(c), the Attorney General did not exceed his

statutory authority by requiring a showing of “outstanding

equities” from those individuals who had been convicted of

serious drug offenses. See id.

[4] The heightened standard is rationally related to the

national immigration policy of not admitting aliens who could

be a danger to society. Our sister circuits are in accord. See

Ali v. Achim, 468 F.3d 462, 466-67 (7th Cir. 2006) (affirming

the BIA’s use of the §212.7(d) standard before it was formally

codified); Jean v. Gonzales, 452 F.3d 392, 396-98 (5th Cir.

2006) (same); compare Succar v. Ashcroft, 394 F.3d 8 (1st

Cir. 2005) (holding, under a different section of the INA, that

categorically eliminating a certain type of relief exceeds the

Attorney General’s discretion). The regulation, which neither

precludes relief for the class of aliens who commit violent

crimes nor instructs the IJ to ignore the statutory considerations, is within the Attorney General’s authority. 

II. RETROACTIVE APPLICATION OF 8 C.F.R. § 212.7(d) 

Mejia, whose convictions were entered long before the regulation was enacted, next contends that the BIA violated constitutional prohibitions on retroactivity by applying 8 C.F.R.

§ 212.7(d) to him. As a preliminary matter, we reject the government’s claim that Mejia waived this argument by failing to

exhaust his administrative remedies. Although ordinarily we

do not hear an argument raised for the first time in a petition

for review, we excuse the lack of exhaustion where a petitioner raises a challenge to the constitutionality of the statutes

and regulations the BIA administers. See Padilla-Padilla v.

Gonzales, 463 F.3d 972, 976-77 (9th Cir. 2006); see also

10500 MEJIA v. GONZALES
Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.

2005) (applying this principle to a retroactivity challenge).

[5] Turning to the merits, we hold that § 212.7(d) may be

applied retroactively. Determining whether a regulation or

statute may be applied retroactively requires a two-step analysis under Landgraf v. USI Film Products, 511 U.S. 244

(1994). First, we determine whether the statute or regulation

clearly expresses that the law is to be applied retroactively, id.

at 280, which is not the case here. The regulation makes no

mention of the timing of the convictions it affects. See 8

C.F.R. § 212.7(d). 

[6] In the absence of clear direction, we must consider

whether application of the regulation would have a retroactive

effect. Landgraf, 511 U.S. at 280. “The inquiry into whether

a statute [or regulation] operates retroactively demands a

commonsense, functional judgment about whether the new

provision attaches new legal consequences to events completed before its enactment.” I.N.S. v. St. Cyr, 533 U.S. 289,

321 (2001) (internal quotations omitted). A regulation has

retroactive effect “when it takes away or impairs vested rights

acquired under existing laws, or creates a new obligation,

imposes a new duty, or attaches a new disability, in respect

to transactions or considerations already past.” See id. (internal quotations omitted). A judgment bearing on retroactivity

should be guided by “fair notice, reasonable reliance, and settled expectations.” Id. (internal quotations omitted). 

Relying principally on St. Cyr, Mejia argues that the regulation “attaches a new disability, in respect to transactions or

considerations already past.” See id. (internal quotations omitted). St. Cyr addressed an individual’s continuing eligibility

for relief under former INA § 212(c). The Supreme Court

held that the INS could not retroactively apply the repeal of

§ 212(c) to individuals whose plea-based convictions were

entered before Congress enacted the Illegal Immigration

MEJIA v. GONZALES 10501
Reform and Immigrant Responsibility Act (“IIRIRA”). Id. at

321. The Court reasoned that 

IIRIRA’s elimination of any possibility of § 212(c)

relief for people who entered into plea agreements

with the expectation that they would be eligible for

such relief clearly attaches a new disability, in

respect to transactions or considerations already past.

. . . There can be little doubt that, as a general matter,

alien defendants . . . are acutely aware of the immigration consequences of their convictions. . . . Given

the frequency with which § 212(c) relief was granted

in the years leading up to [the Anti-Terrorism and

Effective Death Penalty Act] and IIRIRA, preserving

the possibility of such relief would have been one of

the principal benefits sought by defendants deciding

whether to accept a plea offer or instead to proceed

to trial. 

Id. at 321-23 (internal quotations and citations omitted). 

[7] Mejia argues that like St. Cyr, he pleaded guilty to his

offenses with the expectation that the standard for § 212(h)

relief would be “extreme hardship,” rather than “exceptional

and extremely unusual hardship.” He analogizes to St. Cyr’s

expectation that § 212(c) relief would be available. The question, then, is whether the Attorney General’s articulation of an

enhanced standard “attaches a new disability” to Mejia’s conviction. See id. at 321. 

[8] Although Mejia’s argument has some analytical appeal,

his situation differs from St. Cyr’s in one significant way: In

St. Cyr, the repeal of the statute deprived would-be immigrants from seeking any relief under the statute. Id. Here, the

challenged regulation does not completely foreclose the possibility of relief as did the repeal of § 212(c) in St. Cyr. Both

before and after the adoption of § 212.7(d), Mejia had the

ability to seek relief under INA § 212(h). Before and after the

10502 MEJIA v. GONZALES
regulation took effect, Mejia would have been subject to the

Attorney General’s discretion, provided that he met the

threshold statutory requirements at INA § 212(h)(1). And,

both before and after the regulation took effect, we may presume Mejia knew that the IJ would weigh the equities of his

case and make a decision. As the Supreme Court observed in

St. Cyr, “[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.” Id. at 325. Both before and after the

adoption of the regulation, Mejia faced only possible deportation. 

[9] Nor could Mejia reasonably rely on the “extreme hardship” standard applying to the discretionary (rather than statutory eligibility) aspect of the Attorney General’s analysis

because Congress never suggested that the “extreme hardship” standard applied to the Attorney General’s exercise of

discretion. Applying the regulatory “exceptional and

extremely unusual” standard to Mejia does not have an impermissibly retroactive effect because it neither attaches a new

disability to past conduct nor upsets settled expectations. 

III. MEJIA’S REMAINING CLAIMS

We briefly address Mejia’s remaining claims. Mejia first

contends that the BIA erred in using the term “crimes of violence” rather than the statutory standard “violent and dangerous” crime, and that, in any event, he did not commit a crime

of violence. The government responds that we lack jurisdiction over this challenge. We disagree with both parties’ arguments. 

Looking first at the government’s argument, the jurisdictional statute cited by the government, 8 U.S.C. § 1252(a)(2)

(B)(i), is just a starting point for our jurisdictional analysis.

That statute provides that “no court shall have jurisdiction to

review . . . any judgment regarding the granting of relief

under section 1182(h) . . . .” 8 U.S.C. § 1252(a)(2)(B)(i).

MEJIA v. GONZALES 10503
Despite the categorical language of § 1252(a)(2)(B)(i), a separate subsection, § 1252(a)(2)(D), provides that “[n]othing in

subparagraph (B) or (C), or in any other provision of this

chapter (other than this section) which limits or eliminates

judicial review, shall be construed as precluding review of

constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in

accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). 

The government argues that § 1252(a)(2)(B)(i)’s prohibition on judicial review extends to the determination that

Mejia’s crimes are violent or dangerous, but this contention

misconceives Mejia’s claim. Mejia contends specifically that

the BIA and the IJ used an erroneous legal standard in their

analysis. This is a legal question over which we retain jurisdiction. 8 U.S.C. § 1252(a)(2)(D). 

[10] Turning to Mejia’s underlying claim, we hold that it

lacks merit—the BIA specifically found that “the respondent’s crimes are both violent and dangerous.” The BIA’s

passing references to “crimes of violence” are not inconsistent

with the statutory standard. To the extent Mejia also argues

that his convictions under California Penal Code § 288(a) are

not crimes of violence, that argument is foreclosed by Ninth

Circuit precedent. See United States v. Teeples, 432 F.3d

1110, 1111 (9th Cir. 2006) (holding that a violation of

§ 288(a) is a crime of violence under United States Sentencing Guidelines § 4B1.1(a)); United States v. Medina-Maella,

351 F.3d 944, 946-47 (9th Cir. 2003) (holding that a violation

of § 288(a) is a crime of violence under United States Sentencing Guidelines § 2L1.2(b)(1)). 

We do not have jurisdiction to review the last two issues

raised by Mejia. Mejia argues that if the BIA had considered

Matter of Jean, 23 I. & N. Dec. 373, it would have concluded

that his case was not factually similar enough to that case to

warrant denial of relief. Lastly, Mejia challenges the BIA’s

failure to consider his extensive rehabilitation when it denied

10504 MEJIA v. GONZALES
his § 212(h) application. As noted, § 1252(a)(2)(B)(i) precludes us from reviewing the BIA’s decision under § 212(h),

unless the petition raises a cognizable legal or constitutional

question concerning that determination. See Fernandez v.

Gonzales, 439 F.3d 592, 596 (9th Cir. 2006). Both of these

claims fall well within the BIA’s discretionary authority and

are not subject to our review. See 8 U.S.C. § 1252(a)(2)(B)(i).

PETITIONS DENIED.

MEJIA v. GONZALES 10505