2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-27-2009

Montano v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3577

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3577

___________

SAUL MONTANO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A94-109-820)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 21, 2009

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(filed: October 27, 2009 )

___________

OPINION

___________

PER CURIAM

Petitioner Saul Montano is a native and citizen of El Salvador seeking review of

the Board of Immigration Appeals’ (“BIA”) decision affirming a decision of the
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Immigration Judge (“IJ”) denying his applications for cancellation of removal and for a

waiver of inadmissability. For the following reasons, we will deny Montano’s petition for

review.

I.

Montano entered the United States without inspection in 1990 and received

Temporary Protected Status (“TPS”) in 1992. He became a lawful permanent resident

(“LPR”) in 2001 under section 203 of the Nicaraguan Adjustment and Central American

Relief Act. However, on March 3, 2004, Montano was convicted of third-degree

aggravated assault in New Jersey, and on May 23, 2005, he was convicted of receiving

stolen property. He was sentenced to two-years probation for each conviction. In 2007,

the Department of Homeland Security (“DHS”) charged Montano as removable under 8

U.S.C. § 1227(a)(2)(A)(i) and (ii). On March 24, 2008, the Immigration Judge (“IJ”)

found Montano removable on both charges. 

At his removal proceeding, Montano filed an application for cancellation of

removal under 8 U.S.C. § 1129b(a), and an application for a waiver of inadmissibility

under 8 U.S.C. § 1182(h). The IJ found Montano to be ineligible for a waiver because he

was not an arriving alien and because he did not (and could not) file an adjustment of

status application in conjunction with the waiver application. The IJ determined that

Montano was ineligible for cancellation of removal because he did not meet the

requirement of seven years of continuous physical presence in the United States, as he
For purposes of cancellation of removal, any period of continuous physical 1

presence ends when “the alien has committed an offense referred to in section 1182(a)(2)

of this title that renders the alien inadmissible.” 8 U.S.C. § 1229b(d)(1). 

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only became an LPR in 2001 and his TPS period did not qualify as an “admission” to the

United States. 

On July 28, 2008, the BIA dismissed Montano’s appeal. Montano argued that, for

the purposes of eligibility for cancellation of removal, his period of continuous physical

presence in the United States should be tabulated from the time he received TPS. The

BIA rejected this argument because the TPS period may be considered for the

“continuous physical presence” calculation only if the Attorney General determines that

extreme hardship exists. 8 U.S.C. § 1254a(e). Because Montano did not argue, or show,

that such hardship existed, the BIA determined that he was statutorily ineligible for

cancellation of removal as he could not establish more than two years of continual

residence prior to his April 2003 arrest.1

The BIA also agreed with the IJ that Montano was ineligible for a waiver of

inadmissibility because he did not file an application for an adjustment of status. See 8

U.S.C. § 1182(h). The BIA determined that the statute “does not provide for a ‘standalone’ waiver; and therefore [Montano] must submit an application for a . . . waiver

concurrently with an application for adjustment of status.” 

Through counsel, Montano now petitions for review of the BIA’s final order of

removal.
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II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. §

1252(a)(1), and will sustain the BIA’s determination if there is substantial evidence to

support it. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003). 

Eligibility for cancellation of removal requires that a petitioner demonstrate that he

or she has “(1) been . . . lawfully admitted for permanent residence for not less than 5

years, (2) has resided in the United States continuously for 7 years after having been

admitted in any status, and (3) has not been convicted of any aggravated felony.” 8

U.S.C. § 1229b(a). Although Montano was granted TPS in 1992, the TPS statute states

that “the period of such status shall not be counted as a period of physical presence in the

United states for purposes of section 1229b(a) . . . , unless the Attorney General

determines that extreme hardship exists.” 8 U.S.C. § 1254a(e) (repealed 1996). 

Montano argues that he did not receive a full and fair hearing as to his applications

for relief because the IJ did not hear any testimony concerning his claim of extreme

hardship, and thus that his due process rights were violated. We have jurisdiction over

Montano’s due process claim under 8 U.S.C. § 1252(a)(2)(D). Due process in this

context requires that a petitioner be provided with a full and fair hearing and a reasonable

opportunity to present evidence. Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.

2006). To prevail on a procedural due process challenge, a petitioner must make an

initial showing of substantial prejudice. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d
5

Cir. 2005). Thus, in order to prevail here, Montano must make a strong showing that if

the IJ had taken testimony from him or his family, he likely would have found “extreme

hardship” and granted Montano’s application for a waiver of inadmissibility.

Montano does not, however, indicate how his or his family’s testimony would have

demonstrated such hardship other than to say that his removal has “caused exceptional

and unusual hardship to his family members lawfully here in the United States.” 

Therefore, even assuming that the IJ erred by ruling on his application without taking

testimony, Montano has failed to show that he was prejudiced by that decision. For this

reason, Montano is not entitled to relief on his due process claim.

We also have jurisdiction to review legal and constitutional questions concerning

Montano’s eligibility for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h)(2). 

See 8 U.S.C. § 1252(a)(2)(D). Eligibility for a waiver requires that “the Attorney general,

in his discretion . . . , has consented to the alien’s applying or reapplying for a visa, for

admission to the United States, or adjustment of status.” 8 U.S.C. § 1182(h)(2). The BIA

concluded that this language required Montano to file an application for an adjustment of

status in conjunction with his waiver application. Because Montano did not and could not

do so, he was ineligible for a waiver of inadmissibility. 

Despite Montano’s argument to the contrary, In re Abosi, 24 I. & N. Dec. 204

(BIA 2007), supports the BIA’s determination that Montano could not succeed on an

independent application for a waiver of inadmissibility. In Abosi, the BIA stated that 8
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C.F.R. § 1245.1(f)—the adjustment of status regulation—applies to aliens “in the United

States who are seeking to overcome a ground of inadmissibility and are required to file a

concurrent application for adjustment of status in order to obtain a waiver.” 24 I. & N.

Dec. at 205 (emphasis in original). Therefore, under the plain reading of the statute and

the BIA’s interpretation of it in Abosi, substantial evidence supports the conclusion that

as long as Montano was in the United States, he was barred from seeking a waiver of

inadmissibility without also applying for a change of status. 

Montano also appears to argue that this interpretation of the statute denied him his

right to equal protection of the laws, as Abosi also concluded that LPRs who are outside

the United States and seek to return via a waiver of inadmissibility are not required to file

a concurrent adjustment of status application. Id. We assess whether a statute’s

requirements violate the equal protection component of the Due Process Clause under

rational basis review. Arca-Pineda v. Att’y Gen., 527 F.3d 101, 105 (3d Cir. 2008). In

Klementanovsky v. Gonzales, the Seventh Circuit confronted a similar issue, and found

that the requirements of 8 U.S.C. § 1182(h) did not violate the petitioner’s equal

protection rights. 501 F.3d 788 (7th Cir. 2007). The Seventh Circuit rejected the

petitioner’s assertion that the statute made an improper distinction between persons who

“have left the country and returned, and those who have stayed and applied for a . . .

waiver directly,” stating that:

 [the] line that Congress has drawn is between those criminal aliens who seek

to be admitted to the United States and those . . . who are being deported from
the United States. In the case of the former, a humanitarian waiver is available

under § [1182(h)]. In the case of the latter, Congress has conspicuously

refused to include a provision for a discretionary waiver of deportability from

the applicable statute.

Id. at 791-92 (emphasis in original). 

As the Seventh Circuit opined, “[t]here are any number of rational grounds on

which Congress could choose to draw a line between those who committed crimes before

applying to enter the country (making them inadmissible) and those who have committed

crimes since arriving (making them deportable).” Id. at 792. One such reason is that

Congress may have wanted people who were convicted of certain crimes to remain

outside the country while their applications for the waiver are considered. Id. at 792-93. 

The Seventh Circuit’s rationale in Klementanovsky is sound, and we find that Montano’s

equal protection rights have not been violated.

For the foregoing reasons, we deny Montano’s petition for review. 

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