Noel Sarmiento v. Loretta E. Lynch , 603 F. App'x 623 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOEL AMBABAG SARMIENTO, No. 12-70181
Petitioner, Agency No. A042-421-285
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2015**
San Francisco, California
Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and COLLINS,*** Chief
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Noel Sarmiento, a native and citizen of the Philippines, petitions for review
of a decision of the Board of Immigration Appeals (“BIA”) denying his timely
motion to reopen. We dismiss the petition for lack of jurisdiction.
This Court lacks jurisdiction to review final orders of removal of aliens
convicted of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). However, we retain
jurisdiction to determine whether petitioner is indeed removable on that ground.
Zavaleta-Gallegos v. INS, 261 F.3d 951, 954 (9th Cir. 2001). Therefore, “the
jurisdictional question and the merits collapse into one.” Sareang Ye v. INS, 214
F.3d 1128, 1131 (9th Cir. 2000).
Sarmiento’s conviction for California Penal Code § 273.5(a) qualifies as a
crime of violence aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F). To
render an alien removable on these grounds under 8 U.S.C. § 1227(a)(2)(A)(iii), an
offense must meet two criteria: (1) it must be a crime of violence as defined in 18
U.S.C. § 16 that is not a purely political offense; and (2) the term of imprisonment
must be at least one year. Id. § 1101(a)(43)(F).
We have held that § 273.5(a) is categorically a crime of violence under 18
U.S.C. § 16(a). Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010).
Furthermore, as the Immigration Judge pointed out, the charging documents
indicate that Sarmiento wielded a knife and “inflicted great bodily injury upon”
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another through the direct application of force. Sarmiento was sentenced to 365
days’ imprisonment, which fulfills the second criteria for a crime of violence
aggravated felony. See Habibi v. Holder, 673 F.3d 1082, 1085–86 (9th Cir. 2011)
(holding that a sentence of 365 days is equivalent to a sentence of a year for
purposes of 8 U.S.C. § 1101(a)(43)(F)).
The expungement of Sarmiento’s conviction in California state court
pursuant to Cal. Pen. Code § 1203.4 does not alter this conclusion. “[A]s a general
rule, an expunged conviction qualifies as a conviction under the INA.” De Jesus
Melendez v. Gonzalez, 503 F.3d 1019, 1024 (9th Cir. 2007) (alterations in original)
(quoting Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002)). In
Ramirez-Castro, we applied that rule to a conviction expunged pursuant to Cal.
Pen. Code § 1203.4, the same rehabilitative statute under which Sarmiento’s
conviction was expunged. 287 F.3d at 1174–75. His conviction remains valid for
removal purposes under 8 U.S.C. § 1227(a)(2)(A)(iii).
The reduction of Sarmiento’s offense to a misdemeanor pursuant to Cal.
Pen. Code § 17(b) also does nothing to change this analysis. Cal. Pen. Code
§ 273.5(a) is a “wobbler,” meaning that a conviction under it may be either a
misdemeanor or a felony under California state law. See Ceron v. Holder, 747
F.3d 773, 777 (9th Cir. 2014) (en banc); Banuelos-Ayon, 611 F.3d at 1083 n.1.
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However, classification as an aggravated felony for immigration purposes is made
without regard for the nomenclature adopted under state law. United States v.
Gonzalez-Tamariz, 310 F.3d 1168, 1170 (9th Cir. 2002). “The relevant question is
whether the crime meets the definition of an ‘aggravated felony’ under federal
sentencing law.” Id. (internal quotation marks omitted). As explained above,
Sarmiento’s conviction under Cal. Pen. Code § 273.5(a) so qualifies. We have also
previously rejected Sarmiento’s argument that an expungement under Cal. Pen.
Code § 17(b) retroactively reduces the maximum punishment available under state
law to six months’ imprisonment. See Ceron, 747 F.3d at 778.
Sarmiento does not raise a colorable constitutional claim or question of law,
which is the sole exception to the limitation on this Court’s jurisdiction imposed by
8 U.S.C. § 1252(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(D). Therefore, as an alien
convicted of an aggravated felony, his petition for review must be dismissed for
lack of jurisdiction.
PETITION DISMISSED.
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