804 F.3d 1262 (9th Cir. 2015), 12-73469, Mancilla-Delafuente v. Lynch

Docket Nº:12-73469
Citation:804 F.3d 1262
Opinion Judge:CALLAHAN, Circuit Judge.
Party Name:HECTOR MANCILLA-DELAFUENTE, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent
Attorney:Ian Silverberg, Esq. (argued), Reno, Nevada, for Petitioner. David Schor (argued), Trial Attorney, Stuart F. Delery, Assistant Attorney General, Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for ...
Judge Panel:Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and Lee H. Rosenthal,[*] District Judge.
Case Date:November 02, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's finding of removeability and determination that he was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude (CIMT) for which a sentence of one year or longer may be imposed pursuant to 8 U.S.C. 1229b(b). The court affirmed the BIA’s finding that petitioner's... (see full summary)

 
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Page 1262

804 F.3d 1262 (9th Cir. 2015)

HECTOR MANCILLA-DELAFUENTE, Petitioner,

v.

LORETTA E. LYNCH, Attorney General, Respondent

No. 12-73469

United States Court of Appeals, Ninth Circuit

November 2, 2015

Argued and Submitted August 14, 2015, San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A094-397-433.

SUMMARY[**]

Immigration

The panel dismissed Hector Mancilla-Delafuente's petition for review of the Board of Immigration Appeals' decision finding him ineligible for cancellation of removal based on his conviction for conspiracy to possess a credit card without consent, in violation of Nevada Rev. Stat. § § 199.480 and 205.690(2).

The panel held that because an intent to defraud applies to all conduct proscribed by § 205.690(2), a conviction under the statute is a categorical crime involving moral turpitude. The panel also held that Mancilla-Delafuente was not eligible for the petty offense exception because a conspiracy conviction under § 199.480 is a gross misdemeanor potentially punishable by imprisonment up to one year. The panel deferred to the BIA's interpretation of the Immigration and Nationality Act, which considers the sentence potentially imposed rather than the sentence actually imposed.

Ian Silverberg, Esq. (argued), Reno, Nevada, for Petitioner.

David Schor (argued), Trial Attorney, Stuart F. Delery, Assistant Attorney General, Erica B. Miles, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and Lee H. Rosenthal,[*] District Judge.

OPINION

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CALLAHAN, Circuit Judge.

Hector Mancilla-Delafuente (" Mancilla" ), a native and citizen of Mexico, entered the United States without being admitted in 1997. The Board of Immigration Appeals (" BIA" ) found Mancilla removable and determined that Mancilla was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude (" CIMT" ) for which a sentence of one year or longer may be imposed pursuant to 8 U.S.C. § 1229b(b). Mancilla petitions for review, contending that his conviction is not for a categorical CIMT and that he is eligible for the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii).

Page 1264

We disagree and dismiss the petition for review.

I.

Mancilla entered the United States through El Paso, Texas, in 1997 without inspection by Immigration Officers, and claimed to be from El Paso in order to obtain employment authorization. While living in the United States, Mancilla was arrested for battery, violating a restraining order, fraudulent application for a driver's license, and twice for domestic battery. Mancilla was also convicted on March 27, 2009, for conspiracy to possess a credit card without consent, in violation of Nev. Rev. Stat. § § 199.480 and 205.690(2). Mancilla pleaded guilty, was charged a fine and fees of $775.00, and was given credit for two-days time served.

On March 18, 2010, the Department of Homeland Security (" DHS" ) initiated removal proceedings in connection with Mancilla's March 2009 credit card conspiracy conviction. The DHS's Notice to Appear charged Mancilla with being removable as an alien present in the United States without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i). On June 21, 2011, the Immigration Judge (" IJ" ) found that Mancilla had been convicted of a CIMT and was thus ineligible for cancellation of removal under 8 U.S.C. § 1229b(b). The IJ also found Mancilla ineligible for the petty offense exception because he had been convicted of an offense that Nev. Rev. Stat. § 193.140 made potentially punishable by imprisonment for up to one year. The BIA affirmed the IJ's order finding Mancilla ineligible for cancellation of removal.

Mancilla filed a timely petition for review with this court.

II.

We lack jurisdiction over denials of discretionary relief but " retain jurisdiction over the BIA's determination of the purely legal" questions. See 8 U.S.C. § 1252(a)(2)(B) and (D); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002). Whether an offense is a CIMT is a purely legal question. See

Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010).

There are two steps for determining whether an offense is a CIMT: first, the BIA interprets the conduct proscribed by the state statute, and second, the BIA determines whether the conduct proscribed involves moral turpitude. See

Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en banc). We review the BIA's interpretation of the statute de novo. Id. We review the BIA's interpretation of ambiguous terms in the Immigration and Naturalization Act (" INA" ), including the definition of moral turpitude, with the deference required by Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Marmolejo-Campos, 558 F.3d at 909.

III.

A.

Section 1229b(b)(1) does not allow for cancellation of a removal order...

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