Renzo Chiarella-Cerron v. Merrick Garland

FILED NOT FOR PUBLICATION FEB 13 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RENZO CHIARELLA-CERRON, No. 18-71261 Petitioner, Agency No. A095-775-192 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 9, 2023** Pasadena, California Before: SCHROEDER, TALLMAN, and IKUTA, Circuit Judges. Renzo Chiarella-Cerron seeks review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) * 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). denying his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition. In Chiarella-Cerron’s first petition for review, we held (among other things) that: (1) the BIA did not err in holding, based on the allegations in the felony complaint, that Chiarella-Cerron was convicted of conspiracy under Section 182(a)(1) of the California Penal Code to commit assault with a deadly weapon in violation of Section 245(a)(1) of the California Penal Code; and (2) we lacked jurisdiction over Chiarella-Cerron’s argument that the BIA erred in determining that he committed a “violent or dangerous” crime as defined in 8 C.F.R. § 212.7(d). Chiarella-Cerron v. Lynch, 610 Fed. App’x 623, 624–25 (9th Cir. 2015). We granted the petition for the limited purpose of allowing the BIA to reconsider its determination that Chiarella-Cerron’s conviction was for a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Id. at 624. Given our conclusions in the prior decision, which are law of the case,1 the only issue properly before us is Chiarella-Cerron’s challenge to the BIA’s determination on remand that his conviction for conspiracy to commit a violation 1 None of the exceptions to the law of the case doctrine apply, see Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1062 n.5 (9th Cir. 2020), and we are thus “precluded from reconsidering” the issues decided in our prior disposition, United States v. Crooked Arm, 853 F.3d 1065, 1069 (9th Cir. 2017). 2 of Section 245(a)(1) was a CIMT. The BIA did not err in reaching this conclusion, because a violation of Section 245(a)(1) is “categorically” a CIMT, Safaryan v. Barr, 975 F.3d 976, 981 (9th Cir. 2020), and “a conspiracy to commit an offense involves moral turpitude . . . when the underlying substantive offense is a crime involving moral turpitude,” Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir. 1993); see also Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007). Because Chiarella-Cerron was convicted of a CIMT, he was “inadmissible,” 8 U.S.C. § 1182(a)(2)(A)(i)(I), and therefore ineligible for adjustment of status in the absence of a waiver, see 8 U.S.C. §§ 1182(h), 1255(a), see also Safaryan, 975 F.3d at 980, to which he is not entitled, see Chiarella-Cerron, 610 Fed. App’x at 625. PETITION DENIED. 3