Hugo Jimenez-Morales 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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HUGO JIMENEZ-MORALES, No. 19-70766 Petitioner, Agency No. A200-626-301 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. Hugo Jimenez-Morales, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) determination that Jimenez-Morales’ conviction under California Penal Code § 245(a)(1) qualifies as a crime involving moral turpitude * 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). (“CIMT”) under 8 U.S.C. § 1227(a)(2), rendering him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition. 1. Jimenez-Morales argues that his conviction for assault with a deadly weapon in violation of California Penal Code § 245(a)(1) does not qualify as a CIMT that would disqualify him from eligibility for cancellation of removal. The BIA concluded that Jimenez-Morales’ conviction is a categorical CIMT based on its decision in Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017). “[W]e must uphold the BIA’s determination that a given offense is a crime involving moral turpitude if it ‘is based on a permissible construction[]’ . . . of the phrase ‘crime involving moral turpitude.’” Safaryan v. Barr, 975 F.3d 976, 982 (9th Cir. 2020) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). Concluding that Matter of Wu is entitled to Chevron deference, we recently held that “the BIA correctly determined that [a petitioner’s] conviction under § 245(a)(1) was for a [CIMT] and that he was therefore inadmissible under the [Immigration and Nationality Act].” Id. at 988. Therefore, Jimenez-Morales’ conviction under § 245(a)(1) qualifies as a CIMT. 2. 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 2 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. Jimenez-Morales argues that this reduction applies retroactively to his conviction under § 245(a)(1) 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 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, Jimenez-Morales 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). 3. Finally, Jimenez-Morales contends that his conviction under § 245(a)(1) was not for “an offense under” § 1227(a)(2)(A)(i) that would bar him from cancellation of removal because he did not commit the CIMT within five years of admission to the United States. See 8 U.S.C. §§ 1229b(b)(1)(C), 1227(a)(2)(A)(i)(I). The BIA rejected this argument based on its decision in 3 Matter of Ortega-Lopez, 27 I. & N. Dec. 382 (BIA 2018). There, the BIA concluded 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 deportability.” Ortega-Lopez v. Barr, 978 F.3d 680, 693 (9th Cir. 2020). We recently concluded that the BIA’s interpretation of § 1229b(b)(1)(C) in Matter of Ortega-Lopez is permissible and therefore entitled to Chevron deference. Id. at 690–93. We thus hold that Jimenez-Morales’ § 245(a)(1) conviction was “an offense under” § 1227(a)(2)(A)(i) even though he was not convicted of a CIMT committed within five years of admission to the United States. PETITION DENIED. 4