Perez-Valencia v. Mukasey

273 F. App'x 637

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2008
• Docket: No. 04-75109
• Status: Published

Opinion

MEMORANDUM

*

Sergio Perez-Valencia petitions for review of the Board of Immigration Appeals’s final order of removal. We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a)(1) and review the immigration judge’s decision as the final agency decision. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004). We review questions of law de novo, Martinez-Garcia v. Ashcroft, 366 F.3d 732, 733 (9th Cir.2004), and factual findings for substantial evidence. Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.2004). The petition for review is denied, in part, and dismissed, in part.

The immigration judge found that Perez-Valencia procured his 1994 visa and admission by willfully misrepresenting two material facts: his prior conviction and his prior deportation. Perez-Valencia was thus removable pursuant to 8 U.S.C. § 1227(a)(1)(A) as inadmissible under 8 U.S.C. § 1182(a)(6)(C)®. Perez-Valencia argues, first, that the documents in the record are insufficient to establish the misrepresentation, and second, that he disclosed his 1988 California conviction for child molesting during a medical evaluation. The government must prove by “clear, unequivocal and convincing” evidence the factual grounds for removal. Nakamoto, 363 F.3d at 881-82. Therefore, we consider “whether substantial evidence supports a finding by clear and convincing evidence” that Perez-Valencia sought to procure a visa, documentation or admission by fraud or by willfully misrepresenting whether he had a prior 1988 criminal conviction and 1989 deportation. Id. at 882.

The certified copies of Perez-Valencia’s visa application, signed under oath on April 20, 1994, 1988 California conviction for child molesting, prior deportation oi’der, and 1989 warrant of deportation clearly and convincingly prove that Perez-Valencia willfully misrepresented his prior conviction and deportation. Forbes v. INS, 48 F.3d 439, 442 (9th Cir.1995) (holding that knowledge of the falsity is sufficient to establish fraud or a willful misrepresentation).

Moreover, the record does not compel a contrary conclusion that Perez-Valencia revealed the 1988 child molesting conviction during a medical examination. Rather, the evidence supports the conclusion that he merely revealed a 1985 disorderly conduct conviction.

The IJ also found that Perez-Valencia was removable pursuant to 8 U.S.C. § 1227(a)(1)(A) as inadmissible under 8 U.S.C. § 1182(a)(9)(A)© (inadmissible because previously removed within five years). For the first time in these proceedings, he argues that 8 U.S.C. § 1182(a)(9)(A)© does not apply to prior final orders of deportation or exclusion. However, Perez-Valencia did not exhaust his administrative remedies for this argument. Therefore, we lack jurisdiction to consider the claim. 8 U.S.C. § 1252(d)(1); Rendon v. Mukasey, 520 F.3d 967, 971-72 (9th Cir.2008); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).

Finally, Perez-Valencia argues that he is statutorily eligible for a § 212(h) waiver. However, he does not challenge the IJ’s finding that he lacked the requisite seven years of continuous residence. His failure to meet the seven year residency requirement renders him ineligible for § 212(h) relief. 8 U.S.C. § 1182(h).

PETITION FOR REVIEW DENIED, IN PART, AND DISMISSED, IN PART.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.