Hector Mancilla-Delafuente v. Loretta E. Lynch , 804 F.3d 1262 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR MANCILLA-DELAFUENTE, No. 12-73469
Petitioner,
Agency No.
v. A094-397-433
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 14, 2015—San Francisco, California
Filed November 2, 2015
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and Lee H. Rosenthal,* District Judge.
Opinion by Judge Callahan
*
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
2 MANCILLA-DELAFUENTE V. LYNCH
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MANCILLA-DELAFUENTE V. LYNCH 3
COUNSEL
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.
OPINION
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). 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,
4 MANCILLA-DELAFUENTE V. LYNCH
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
MANCILLA-DELAFUENTE V. LYNCH 5
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 (1984). Marmolejo-
Campos, 558 F.3d at 909.
III.
A.
Section 1229b(b)(1) does not allow for cancellation of a
removal order against an inadmissible alien if he has been
convicted of “an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3),” which we have held means that if
an alien has been convicted of an offense described under any
of those sections, he is ineligible for cancellation. Gonzalez-
Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (“The
most logical reading of ‘convicted of an offense under’ is that
reached by the BIA: ‘convicted of an offense described
under’ each of the three sections.”) (emphasis in original).
Section § 1227(a)(2)(A)(i)(I) provides that an alien convicted
of a CIMT for which the potential punishment is one year or
6 MANCILLA-DELAFUENTE V. LYNCH
more is removable.1 Accordingly, we must look to Nevada
law to determine whether Mancilla was convicted of a CIMT
and the maximum penalty possible.
In doing so, we apply the categorical approach articulated
in Taylor v. United States, 495 U.S. 575, 598–602 (1990), and
compare the elements of the state offense with those of the
generic definition of a CIMT to determine if there is a
categorical match. See Descamps v. United States, 133 S. Ct.
2276, 2283–86 (2013).
There are two types of possible CIMTs: “those involving
fraud and those involving grave acts of baseness or
depravity.” See Robles-Urrea v. Holder, 678 F.3d 702, 708
(9th Cir. 2012). Here we are concerned with convictions
involving fraud. See Jordan v. De George, 341 U.S. 223, 227
(1951) (finding that “a crime in which fraud is an ingredient”
is a CIMT). The BIA has held that an offense is a CIMT if
the statute has as an element the intent to defraud. Matter of
Cortez, 25 I. & N. Dec. 301, 306 (BIA 2010). We review the
BIA’s precedential interpretation of whether conduct involves
moral turpitude with Chevron deference. See Mendoza, 623
F.3d at 1302 (citing Marmolejo-Campos, 558 F.3d at
908–11). We find the BIA’s holding that the intent to defraud
is morally turpitudinous is reasonable in light of Supreme
Court precedent and this Circuit’s precedent. See, e.g.,
Jordan, 341 U.S. at 227; Robles-Urrea, 678 F.3d at 708.
Moreover we have previously held that conspiracy is a CIMT
if the underlying offense involved moral turpitude. See
McNaughton v. INS, 612 F.2d 457, 458 (9th Cir. 1980).
1
However, § 1182(a)(2)(A)(ii)(II) creates an exception for an alien
convicted of a CIMT where the maximum penalty possible does not
exceed imprisonment for one year.
MANCILLA-DELAFUENTE V. LYNCH 7
Nev. Rev. Stat. § 205.690(2) criminalizes “possess[ion of]
a credit card or debit card without the consent of the
cardholder and with the intent to circulate, use, sell or transfer
the credit card or debit card with the intent to defraud.” Thus,
in order to be convicted under the statute, the state must show
a person acted with the intent to defraud. Accordingly, we
affirm the BIA’s finding that a violation of Nev. Rev. Stat.
§ 205.690(2) is a categorical CIMT.
B.
Mancilla is not entitled to the petty offense exception in
section 1182(a)(2)(A)(ii) because the exception is only
available to aliens whose CIMT conviction did not have a
maximum possible penalty of imprisonment for a year or
more. However, a conspiracy conviction under Nev. Rev.
Stat. § 199.480 is a gross misdemeanor potentially punishable
by one year imprisonment, and is covered by
§ 1227(a)(2)(A)(i)(I).2 Although Mancilla was not sentenced
to a year imprisonment, we defer to the BIA’s reasonable
approach of considering the sentence that could have been
imposed, not the actual sentence. See Matter of Cortez,
25 I. & N. Dec. at 307 (explaining that an offense is described
under § 1227(a)(2) if the alien was convicted of a CIMT “for
which a sentence of a year or longer could have been
imposed”) (emphasis added).
2
Although Nev. Rev. Stat. § 193.140 was amended in 2013 to limit the
sentence to 364 days, this is of no help to Mancilla, who was sentenced in
2009, because the amendment provides that it only applies to individuals
sentenced after October 1, 2013. NV LEGIS 229 (2013), 2013 Nevada
Laws Ch. 229 (S.B. 169), § 30.
8 MANCILLA-DELAFUENTE V. LYNCH
C.
Mancilla’s reliance on the Fourth Circuit decision in
Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005), is
unavailing. Unlike the Virginia statute at issue in Soliman,
Nev. Rev. Stat. § 205.690(2) does not contain alternative
elements and thus does not allow for the application of the
modified categorical approach. See Descamps, 133 S. Ct. at
2283–86 (explaining that the modified categorical approach
should only be used “to determine which of a statute’s
alternative elements formed the basis of the defendant’s prior
conviction”); see also Mendoza, 623 F.3d at 1303 (“If the
statute proscribes only conduct that involves moral turpitude,
we do not proceed to the modified categorical approach”)
(citation omitted). As the element of intent to defraud applies
to all conduct proscribed by Nev. Rev. Stat § 205.690(2), we
do not proceed to the modified categorical approach. See
Descamps, 133 S. Ct. at 2283–86.
IV.
Because an intent to defraud applies to all conduct
proscribed by Nev. Rev. Stat. § 205.690(2), a conviction
under the statute is categorically a crime involving moral
turpitude. Additionally, we defer to the BIA’s interpretation
of the INA, which considers the sentence that is potentially
imposed instead of the sentence actually imposed. The
petition for review is DISMISSED.