Gildardo Frutos-Lopez v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILDARDO FRUTOS-LOPEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-73750
Agency No. A029-484-149
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 14, 2011
Portland, Oregon
Before: FISHER, PAEZ and CLIFTON, Circuit Judges.
Gildardo Frutos-Lopez applied for adjustment of status to that of an alien
admitted for lawful permanent residence under 8 U.S.C. § 1255(i). Pursuant to 8
U.S.C. § 1182(a)(9)(C)(i)(I) and (II), the Immigration Judge found Frutos
ineligible and denied his application for adjustment of status, also denying his
FILED
DEC 27 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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application for voluntary departure. The Board of Immigration Appeals (BIA)
dismissed Frutos’ appeal. We deny Frutos’ petition.
(1) Adjustment of Status. Frutos argues that § 1255(i) should permit
adjustment of status for those individuals, like himself, who are inadmissible under
§ 1182(a)(9)(C)(i). However, the BIA has interpreted the statutes to mean that an
alien inadmissible under § 1182(a)(9)(C)(i)(I) and (II) is ineligible for adjustment
of status. See In re Briones, 24 I. & N. Dec. 355 (BIA 2007); In re Torres-Garcia,
23 I. & N. Dec. 866 (BIA 2006). Under Chevron USA, Inc. v. Natural Res. Def.
Council, 467 U.S. 837 (1984), we defer to the agency’s permissible interpretation
of the statute, and we have previously adopted the BIA’s interpretation. See
Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1242 (9th Cir. 2007).
Accordingly, Frutos’ argument fails.
(2) Waiver of Inadmissibility. Frutos contends that a waiver for unlawful
presence under § 1182(a)(9)(B)(v) also waives inadmissibility under §
1182(a)(9)(C). The BIA rejected Frutos’ argument because § 1182(a)(9)(B)(v)
specifically provides that the Attorney General has “discretion to waive clause (i)”
(emphasis added). We have interpreted this section to refer only to “clause (i) of
subparagraph (B).” Acosta v. Gonzales, 439 F.3d 550, 557-58 (9th Cir. 2006)
(recognizing that in construing statutes, words are given their ordinary meaning),

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abrogated on other grounds by Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th
Cir. 2011). Because the waiver is limited to aliens under § 1182(a)(9)(B)(i), it
does not apply to Frutos.
(3) Equal Protection. Frutos argues that § 1182(a)(9)(C) violates the equal
protection clause because it irrationally discriminates between two classes of
aliens. An alien who accrues an aggregate period of more than one year of
unlawful presence, departs the United States and then reenters unlawfully or
attempts to reenter unlawfully is rendered inadmissible for 10 years. In contrast,
an alien who makes any number of unlawful entries, but never accrues a total of
more than one year of unlawful presence, departs the United States and then
reenters unlawfully or attempts to do so does not become inadmissible under §
1182(a)(9)(C).
To establish an equal protection violation, Frutos must show that the
distinction is “wholly irrational.” Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167
(9th Cir. 2004) (quoting Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002)).
He must disprove “every conceivable basis which might support a legislative
classification, whether or not the basis has a foundation in the record.” Id. (quoting
Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1164 (9th Cir. 2002)). If the

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But cf. Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th Cir. 2005) (in1
addressing a different but related distinction between two classes of aliens,
accepting government’s argument that an alien who has accumulated multiple
illegal entries is “more culpable than . . . a one-time illegal alien” and that it is
therefore rational to punish him more severely).
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government provides a rational reason for the rule, the equal protection claim fails.
See id.
Here, the government argues that it is rational for Congress to have decided
to punish aliens who have accrued more than one year of unlawful presence more
harshly than aliens who have accrued a lesser amount of time. Frutos has failed to
show that this distinction is “wholly irrational,” so we must reject his equal
protection argument.1
PETITION FOR REVIEW DENIED.

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