Celia Heredia-Guzman v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CELIA HEREDIA-GUZMAN, AKA Celia No. 19-71492 Heredia Guzman, Agency No. A098-408-778 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 13, 2023** San Francisco, California Before: WARDLAW, NGUYEN, and KOH, Circuit Judges. Celia Heredia-Guzman, a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) order denying cancellation of removal. The BIA * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). concluded that Heredia-Guzman’s conviction under California Welfare and Institutions Code § 10980(c)(2) qualifies as a crime involving moral turpitude (“CIMT”) under 8 U.S.C. § 1227(a)(2), rendering her ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Heredia-Guzman does not dispute that her conviction for welfare fraud under § 10980(c)(2) qualifies as a CIMT. See 8 U.S.C. § 1227(a)(2). Instead, she disputes that her offense carried a maximum sentence of at least one year. See 8 U.S.C. § 1227(a)(2)(A)(i)(II). On January 1, 2015, the California legislature enacted California Penal Code § 18.5, which reduced the maximum jail sentences for misdemeanor convictions from “up to or not exceeding one year” to “a period not to exceed 364 days.” Cal. Penal Code § 18.5 (2015). Two years later, effective January 1, 2017, the California legislature amended § 18.5 to apply retroactively to all misdemeanor convictions, regardless of whether the conviction was finalized on or before the statute’s original enactment date. Cal. Penal Code § 18.5. Heredia-Guzman argues that this reduction applies retroactively to her conviction under § 10980(c)(2) for purposes of § 1227(a)(2)(A)(i). See 8 U.S.C. § 1227(a)(2)(A)(i)(II). In rejecting this argument, the BIA relied on its decision in Matter of Valesquez-Rios, 27 I. & N. Dec. 470, 473 (BIA 2018), in which it held that the state amendment did not affect the applicability of § 1227(a)(2)(A)(i)(II) to 2 a past CIMT conviction because the BIA looks to the maximum possible sentence at the time of conviction. In Velasquez-Rios v. Wilkinson, we affirmed the BIA, “hold[ing] that California’s amendment to § 18.5 of the California Penal Code . . . cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).” 988 F.3d 1081, 1089 (9th Cir. 2021). Accordingly, Heredia-Guzman remains “convicted of a crime for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II). 2. Heredia-Guzman also argues that her conviction does not qualify as an “offense under” § 1227(a)(2) because it is eligible for the “petty offense” exception set forth in 8 U.S.C. § 1182(a)(2)(A)(ii). We have held that a “conviction for an offense described in § 1227(a)(2)” renders a petitioner statutorily ineligible for cancellation of removal “[r]egardless of whether h[er] conviction may meet the requirements of the petty offense exception in § 1182(a)(2)(A)(ii).” Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1056–57 (9th Cir. 2010). Indeed, we recently rejected an argument identical to Heredia- Guzman’s in Ortega-Lopez v. Barr, in which we deferred to the BIA’s conclusion that, “pursuant to the cross-reference in § 1229b(b)(1)(C), [a noncitizen] is ineligible for cancellation of removal if the [noncitizen] has been convicted of a [CIMT] for which a sentence of one year or more may be imposed, regardless whether the [noncitizen] meets the immigration prerequisites for inadmissibility or 3 deportability.” 978 F.3d 680, 692 n.11, 693 (9th Cir. 2020). Heredia-Guzman filed a letter filed pursuant to Rule 28(j) citing Reyes v. Garland, 11 F.4th 985 (9th Cir. 2021). She purports that the BIA changed the adjudicatory rule as to whether a CIMT conviction qualifying for the “petty offense” exception bars cancellation of removal, thus changing the legal consequences of her conviction. Id. at 995 (“[A] law is retroactive if it changes the legal consequences of acts completed before its effective date[.]” (cleaned up)). Heredia-Guzman argues that we must therefore engage in a retroactivity analysis. Citing Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003), she claims that, at the time of her conviction under § 10980(c)(2) in 2005, she would not have been barred from cancellation of removal if the “petty offense” exception applied. Her argument fails. In Ortega-Lopez, we wrote: Garcia-Hernandez held that § 1229b(b)(1)(C) incorporated the “petty offense” exception set forth in § 1182(a)(2)(A)(ii)(I), so that an alien who has been convicted of a crime involving moral turpitude that falls within this exception is not ineligible for cancellation of removal. In explaining its reasoning, Garcia-Hernandez stated that it “view[ed] the plain language of [§ 1229b(b)(1)(C)] as incorporating the entirety of [§ 1182(a)(2)], including the exception for petty offenses set forth therein.” This broad statement has been abrogated in part by Gonzalez-Gonzalez [v. Ashcroft], which held that “[t]he plain language of § 1229b indicates that it should be read to cross- reference a list of offenses in three statutes, rather than the statutes as a whole.” 390 F.3d [649, 652 (9th Cir. 2004)]. In light of this ruling, [Petitioner] cannot rely on Garcia-Hernandez for the principle that § 1229b incorporates § 1227(a)(2) as a whole. Therefore, we reject [Petitioner’s] argument that the BIA’s interpretation here conflicts with Garcia- Hernandez. 4 978 F.3d at 692 n.11. Gonzalez-Gonzalez was issued in 2004, before Heredia- Guzman’s conviction. At no time could she have relied on Garcia-Hernandez’s abrogated reasoning to argue that her CIMT conviction did not render her ineligible for cancellation of removal due to the “petty offense” exception.1 Thus, she points to no change in the legal consequences of her conviction that would warrant a retroactivity analysis. 3. Because Heredia-Guzman is ineligible for cancellation of removal under § 1229b(b)(1)(C), we need not determine whether her daughter, who reached the age of majority during the pendency of this case, remains a qualifying relative under § 1229b(b)(1)(D). PETITION DENIED. 1 Heredia-Guzman’s reliance on Matter of Gonzalez-Zoquipan, 24 I. & N. Dec. 549 (BIA 2008), is also meritless because the noncitizen in that case, unlike Heredia- Guzman, “would have remained eligible for cancellation of removal . . . because the maximum penalty possible for his misdemeanor conviction was less than 1 year of imprisonment.” Matter of Cortez Canales, 25 I. & N. Dec. 301, 310 (BIA 2010) (citation omitted). 5