IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60506

Summary Calendar

JULIO CESAR TZOC,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A091 876 831

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Julio Cesar Tzoc, a native and citizen of Guatemala, challenges the

determination of the Board of Immigration Appeals (BIA) that he is ineligible for

cancellation of removal under 8 U.S.C. § 1229b(a) and for a waiver of

removability under 8 U.S.C. § 1227(a)(1)(H). He alleges that he obtained lawful

permanent resident (LPR) status in 1990 under the Immigration Reform and

Control Act of 1986 (IRCA) § 201(a), 8 U.S.C. § 1255a, which allows the Attorney

General to grant an adjustment to LPR status if the alien satisfies various

United States Court of Appeals

Fifth Circuit

F I L E D

June 13, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-60506

conditions, including establishing “that he entered the United States before

January 1, 1982.” § 1255a(a)(2)(A). In 2004, Tzoc visited Guatemala and was

allowed to reenter the United States without formal admission. He pleaded

guilty to possession of cocaine. In 2005, the Department of Homeland Security

(DHS) initiated removal proceedings against him, charging that he was

inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of a

controlled substance offense.

After several rounds of proceedings before the immigration judge (IJ)

followed by appeals to the BIA, the IJ sustained the charge and ultimately

ordered Tzoc removed to Guatemala. The IJ found that he was ineligible for

cancellation of removal under § 1229b(a) because Tzoc testified at a hearing

before the IJ in 2007 that he had lived in the United States for approximately

21 years and that he came to the United States in 1986, when he was 17 years

old. At the time of that proceeding, the case had been remanded to allow Tzoc

to explain this prior testimony or provide other evidence to show that he actually

entered at the required time (before January 1, 1982). In the final proceeding

before the IJ, Tzoc failed to present any such evidence. The IJ also found that

he was ineligible for a waiver of removability under § 1227(a)(1)(H). The BIA

dismissed his appeal.

Tzoc argues that the BIA erred in finding him statutorily ineligible for

cancellation of removal. We review this question of law 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). 

In order to be eligible for cancellation of removal, an alien must have been

“lawfully admitted for permanent residence” for at least five years. § 1229b(a)(1). 

Tzoc argues that his IRCA adjustment in 1990 shows that he satisfied this

requirement. However, the Immigration and Nationality Act (INA) defines the

phrase “lawfully admitted for permanent residence” as “the status of having

been lawfully accorded the privilege of residing permanently in the United

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States as an immigrant in accordance with the immigration laws, such status

not having changed.” § 1101(a)(20) (emphasis added). If Tzoc first entered the

United States after January 1, 1982, as he testified repeatedly before the IJ,

then his IRCA adjustment to LPR status was not “in accordance with the

immigration laws,” § 1101(a)(20); see § 1255a(a)(2)(A). “If, as a matter of law,

[the alien] was not eligible to receive LPR status [when he acquired it], then he

could not, and therefore, did not lawfully acquire it—absent which he is not

eligible for cancellation of removal.” Ramos-Torres v. Holder, 637 F.3d 544, 548

(5th Cir. 2011); see also In re Longstaff, 716 F.2d 1439, 1441-42 (5th Cir. 1983)

(rejecting Tzoc’s interpretation of the phrase “lawfully admitted for permanent

residence” in another INA provision, 8 U.S.C. § 1429). 

Tzoc contends that the BIA erroneously assigned him the burden of

proving that his prior IRCA adjustment was lawful. However, an alien applying

for relief from removal has the burden of proof to establish that he is statutorily

eligible for relief. § 1229a(c)(4)(A)(i); Ramos-Torres, 637 F.3d at 548. Even were

this not so, his own testimony that he first entered in 1986 provides some

evidence that he did not lawfully obtain LPR status; despite a remand in which

to offer contrary evidence, he failed to do so. Accordingly, his argument that the

DHS failed to show that he obtained his IRCA adjustment of status through

fraud or misrepresentation is misplaced. See also Longstaff, 716 F.2d at 1440

(holding that the alien was ineligible for naturalization even though “no evidence

suggest[ed]” that the alien “knew or had reason to know” that he was excludable

from the United States at the time of his original application for admission as

an LPR). 

Although Tzoc argues that the BIA violated the IRCA confidentiality

provision, that provision limits the Government’s use of “the information

furnished by the applicant pursuant to an application filed under this section.” 

§ 1255a(c)(5)(A). Tzoc’s testimony during the 2007 removal hearing was not the

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information furnished by him pursuant to the application for an IRCA

adjustment, which he filed years earlier. 

Tzoc also challenges the BIA’s refusal to consider his request for a

§ 1227(a)(1)(H) waiver. Because the IJ’s decision impacted the BIA’s ruling, we

will consider the underlying decision of the IJ in reviewing this claim. See

Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). Whether Tzoc

was eligible for the § 1227(a)(1)(H) waiver is a question of law, which we review

de novo. See Rana v. Holder, 654 F.3d 547, 549-52 (5th Cir. 2011). 

As the IJ found, such a waiver would not help Tzoc because he was not

subject to removal “on the ground” that he had committed fraud or

misrepresentation. § 1227(a)(1)(H). Although Tzoc assumes that the DHS’s

contention that his IRCA adjustment of status in 1990 was improper entails an

implicit allegation that he committed fraud or a willful misrepresentation in his

IRCA application, the DHS did not have to make such a charge because Tzoc had

the burden of proving that he was statutorily eligible for cancellation of removal. 

See Vasquez-Martinez, 564 F.3d at 715. Rather, Tzoc’s own testimony gave rise

to a question regarding whether his IRCA adjustment to LPR status in 1990 was

lawful. See id.; Ramos-Torres, 637 F.3d at 548.

PETITION DENIED.

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