518 F.3d 714 (9th Cir. 2008), 06-71385, Blanco v. Mukasey

Docket Nº:06-71385.
Citation:518 F.3d 714
Party Name:Mario Jorge BLANCO, Petitioner, v. Michael B. MUKASEY, [*] Attorney General, Respondent.
Case Date:March 03, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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518 F.3d 714 (9th Cir. 2008)

Mario Jorge BLANCO, Petitioner,

v.

Michael B. MUKASEY, [*] Attorney General, Respondent.

No. 06-71385.

United States Court of Appeals, Ninth Circuit.

March 3, 2008

Argued and Submitted Oct. 18, 2007.

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[Copyrighted Material Omitted]

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Michael J. Codner (argued) and Murray D. Hilts, Law Offices of Murray Hilts, San Diego, CA, for the petitioner.

Anthony C. Payne (argued) and Alison R. Drucker, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-159-176.

Before: Harry Pregerson, Michael Daly Hawkins and Raymond C. Fisher, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Mario Jorge Blanco petitions for review of a final order of removal, arguing that the Board of Immigration Appeals ("BIA") erred in holding that he is an inadmissible alien who is not eligible for any discretionary relief. The BIA found Blanco to be ineligible for adjustment of status because he made a false claim to citizenship when he was detained at the border, and ineligible for cancellation of removal because he had been convicted of crimes involving moral turpitude. Because the BIA's moral turpitude finding was flawed, we grant Blanco's petition as to cancellation of removal, but deny his petition in all other respects.

FACTS AND PRIOR PROCEEDINGS

Blanco is a native and citizen of Argentina who has been living in the United States since 1978. In 2001, Blanco traveled

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to Mexico with his wife and a coworker to deliver a truckload of furniture. He was stopped by the Border Patrol when he applied for admission into the United States. He presented a California driver's license, social security card and various membership cards to the Border Patrol agents, but did not have immigration documents. The officer at the primary inspection point suspected that Blanco had made a false claim to U.S. citizenship and referred him to secondary inspection for further questioning, which led to his being placed in detention. The Immigration and Naturalization Service ("INS")1 thereafter instituted removal proceedings against him.

The INS charged Blanco with being inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an alien who was not in possession of valid entry documents, and under § 1182(a)(6) (C)(ii) as an alien who made a false claim to U.S. citizenship in order to gain entrance to the United States.2 Blanco contested these charges and also applied for various forms of relief from removal proceedings, including cancellation of removal available for certain long-time residents under § 1229b(b) and adjustment of status under § 1255(i). Blanco conceded that he was inadmissible as an alien without a valid visa, but argued that he had never falsely claimed U.S. citizenship at the border. Ruling against Blanco on both charges, the immigration judge ("IJ") found Blanco to be inadmissible.

The IJ denied Blanco's request for adjustment of status because under then-existing federal regulations, this relief was unavailable to arriving aliens. The IJ further held that Blanco was not eligible for consideration for cancellation of removal because he had been convicted of two crimes involving moral turpitude, as defined by § 1182(a)(2). Although ordinarily cancellation relief is barred if the alien has committed even one such crime, one of Blanco's convictions--in 1980, for receipt of stolen property--was a misdemeanor violation, which allowed Blanco to remain eligible for cancellation of removal under the so-called petty offense exception. See § 1182(a)(2)(A)(ii). However, because the IJ determined that another of Blanco's prior convictions--a 1986 misdemeanor conviction for false identification to a peace officer under California Penal Code § 148.9(a)--was also a crime involving moral turpitude, the IJ held that Blanco was not eligible for the petty offense exception. The IJ ordered Blanco removed to Argentina.

Blanco timely appealed to the BIA. The BIA declined to affirm the IJ's adjustment of status ruling in light of our intervening decision in Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), which held that regulations barring arriving aliens from applying for adjustment of status were invalid. It nevertheless denied Blanco's adjustment of status application, holding that his false claim of United States citizenship at the border barred such relief. See § 1255(a). The BIA affirmed the IJ's conclusion that Blanco was not eligible for cancellation of removal because he had been convicted of two crimes involving moral turpitude. Lastly, the BIA denied Blanco's request for a remand based on ineffective assistance

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of his prior counsel. Blanco filed a timely petition for review before this court.

ANALYSIS

We have jurisdiction to review the petition under § 1252(b). Because Blanco was not ordered removed as a criminal alien under § 1182(a)(2), the jurisdictional bar of § 1252(a)(2)(C) does not apply. We review questions of law de novo, including "whether a state statutory crime constitutes a crime involving moral turpitude." Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). We review findings of fact by the IJ and BIA for substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also § 1252(b)(4)(B). Where, as here, the BIA "has reviewed the IJ's decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ's decision as the BIA's." Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).

I.

Blanco argues that the BIA erred in holding that he was not eligible for cancellation of removal because his misdemeanor conviction for false identification to a peace officer under California Penal Code § 148.9(a) is not a crime involving moral turpitude. We agree.

In determining whether a conviction qualifies as a crime involving moral turpitude, we apply the categorical and modified...

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