Mendez-Mendez v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO MENDEZ-MENDEZ, 
Petitioner, No. 06-70851
v.
 Agency No.
A92-698-658
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 6, 2007—Honolulu, Hawaii
Filed May 8, 2008
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tashima
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
5087
MENDEZ-MENDEZ v. MUKASEY 5089
COUNSEL
Fernando L. Cosio, Honolulu, Hawaii, for the petitioner.
Norah Ascoli Schwarz, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
5090 MENDEZ-MENDEZ v. MUKASEY
OPINION
TASHIMA, Circuit Judge:
Pablo Mendez-Mendez (“Mendez”), a native and citizen of
Mexico, petitions for review of a decision of the Board of
Immigration Appeals (“Board” or “BIA”), dismissing his
appeal from an Immigration Judge’s (“IJ”) order of removal.
The Board concluded that the IJ did not abuse her discretion
in denying Mendez’s motion for a continuance, and that the
IJ correctly concluded that Mendez did not qualify for the
exception to inadmissibility found in 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II). Accordingly, the Board dismissed
Mendez’s appeal.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and
we deny the petition.1
BACKGROUND
Mendez became a lawful permanent resident of the United
States on December 1, 1990. On September 8, 1995, Mendez
pled guilty to one count of bribery of a public official, in vio-
lation of 18 U.S.C. § 201(b)(1)(A). The sentencing guideline
range was zero to six months, and Mendez was sentenced to
a three-month term of imprisonment.
In 2003, Mendez was returning to the United States from
Mexico and applied for admission as a lawful permanent resi-
dent. In April 2004, Mendez was served with a Notice to
Appear, charging him with inadmissibility for being an alien
convicted of a crime involving moral turpitude, pursuant to 8
U.S.C. § 1182(a)(2)(A)(i)(I), based on his bribery conviction.
1
The government contends that 8 U.S.C. § 1252(a)(2)(B)(ii) strips this
court of jurisdiction to review an IJ’s denial of a continuance. Mendez,
however, does not seek review of the IJ’s denial of his motion for a con-
tinuance. This contention, therefore, does not affect our jurisdiction.
MENDEZ-MENDEZ v. MUKASEY 5091
A hearing was held before an IJ on May 4, 2004. Through
his counsel, Fernando Cosio, Mendez contested his removal,
sought termination of proceedings, and indicated his intent to
seek waiver of inadmissibility pursuant to 8 U.S.C. § 1182(c)
or (h), and cancellation of removal pursuant to 8 U.S.C.
§ 1229b. The IJ scheduled a hearing for September 29, 2004,
and set a filing deadline of August 6, 2004, for any applica-
tions for relief.
Mendez subsequently hired a new attorney, Clifton Davis,
and, on July 28, 2004, Davis filed a motion to substitute in as
attorney of record and a request to continue the September
hearing and to extend the deadlines to submit Mendez’s appli-
cations for relief. Davis stated in the motion that Mendez
retained him on July 28, 2004, and that Davis had been out
of the country from mid-May to July 19. Davis sought a con-
tinuance in order to have time to prepare Mendez’s case.
On August 3, 2004, the clerk of the immigration court sent
Davis a form, stating that Davis’ letter was being returned
because Mendez already had counsel of record, Cosio. On
August 17, 2004, Cosio filed a motion to withdraw as counsel
for Mendez. Cosio stated that he met with Mendez on August
11, 2004, and Mendez asked him to withdraw his representa-
tion. Cosio attached a letter from Mendez, written in Spanish,
with an English translation, in which Mendez requested that
Cosio stop representing him, “effective today,” August 11,
2004. Mendez further stated that his church would help him
with his case. The IJ issued an order on August 17, 2004, stat-
ing that “[t]he individual hearing is rescheduled to August
27, 2004 . . . because [Mendez] missed the August 6, 2004
deadline to file the I-191 application for the 212(c) waiver,
and therefore it is deemed waived. Motion to withdraw as
counsel will be addressed on August 27, 2004.”
On August 24, 2004, Davis again filed a motion to substi-
tute in as attorney of record and to continue the hearing and
filing dates. Davis stated that he did not receive the August 3,
5092 MENDEZ-MENDEZ v. MUKASEY
2004, notice from the court denying his first motion because
he had also taken “a ten day trip around the islands.” Upon
his return, he “learned personally from Attorney Cosio that
Mr. Cosio had been acting as temporary counsel in the mat-
ter,” and was told by Cosio that the merits hearing had been
moved to August 27, 2004. Davis also attached a letter from
Cosio, in which Cosio explained that, at the time Cosio filed
his motion to withdraw, he did not know that Mendez had
retained Davis.
On August 24, 2004, the IJ filed an order granting the
motion for withdrawal and substitution of counsel, but she
also filed an order denying the motion to continue the hearing
and filing dates. The IJ held the hearing on August 27, 2004.
Davis appeared on Mendez’s behalf. Cosio also was present
at the hearing.
Davis explained that he was hired by Mendez on July 28
and that he immediately sent in the motion to continue the
hearing and filing dates. The motion was returned to him
because Cosio was still the attorney of record, but Davis did
not receive it until he returned from his trip around the
islands. As soon as he returned, Davis contacted Cosio to
learn what was happening with the case, and he contacted
government counsel, who did not express any objection to a
continuance. Davis also stated that he thought that Mendez
would qualify for cancellation of removal because he had the
seven years of continuous residence required by 8 U.S.C.
§ 1229b(a).
The IJ then turned to the issue of whether Mendez qualified
for the so-called petty offense exception to inadmissibility
found in 8 U.S.C. § 1182(a)(2)(A)(ii)(II), which exempts an
alien who committed a crime involving moral turpitude if “the
maximum penalty possible for the crime of which the alien
was convicted . . . did not exceed imprisonment for one year
and, if the alien was convicted of such crime, the alien was
not sentenced to a term of imprisonment in excess of 6
MENDEZ-MENDEZ v. MUKASEY 5093
months.” 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The focus of the
discussion at the hearing was whether the phrase, “maximum
penalty possible,” referred to the maximum penalty under the
sentencing guidelines, or the statutory maximum.
The IJ then allowed Cosio to speak. Cosio explained that
Mendez “never signed my retainer agreement,” and that he
told Mendez and Mendez’s son the possible types of relief for
which Mendez could apply and the “urgency” of applying, but
that Mendez was unable to pay the retainer fee. Cosio further
stated that, when Mendez retained Davis on July 28, Mendez
did not tell Davis that Cosio was the attorney of record. Cosio
then explained that, when Mendez asked Cosio to withdraw
his representation, Mendez told Cosio that his church would
be helping him, and he did not let Cosio know that Davis had
been retained.
The IJ issued an oral decision denying relief and ordering
Mendez removed to Mexico. The IJ found that, although
Mendez never signed a retainer agreement with Cosio, Cosio
did explain to Mendez and Mendez’s son “the urgency of fil-
ing the various applications” for relief. The IJ noted that
Mendez’s son had not filed a visa petition for Mendez, and
that Mendez failed to file a Form I-191, which is an applica-
tion for advance permission to return to the United States. See
http://www.uscis.gov/files/form/i-191instr.pdf. Stating that it
was inconvenient for the court to arrange for a Spanish inter-
preter,2 and for the court to “give filing deadlines in writing
as well as orally only to have them disregarded,” and that the
Form I-191 was readily available to Mendez, the court found
that Mendez acted unreasonably in failing to file his applica-
tions in a timely manner. The IJ accordingly denied the
motion for a continuance.
The IJ also found that Mendez’s conviction for bribery was
a crime involving moral turpitude and was not subject to the
2
Mendez’s Immigration Court hearing was held in Honolulu, Hawaii.
5094 MENDEZ-MENDEZ v. MUKASEY
petty offense exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
The IJ agreed with the government that the phrase, “maxi-
mum penalty possible,” refers to the statutory maximum, not
the guideline range. Because the statutory maximum for
Mendez’s bribery offense was fifteen years, the IJ held that he
was ineligible for the petty offense exception. The IJ accord-
ingly denied Mendez’s motion for termination of the proceed-
ings and ordered Mendez removed to Mexico. Mendez then
filed an administrative appeal to the Board.
The BIA dismissed Mendez’s appeal. It pointed out that
Mendez was given more than three months in which to pre-
pare his application for relief, that he was represented by
Cosio throughout that time, and that he still failed to file any
applications. The Board further noted that Cosio did not seek
a continuance between the May hearing and the date he filed
his motion to withdraw as counsel in August. The Board
accordingly concluded that the IJ did not abuse her discretion
in denying Mendez’s motion for a continuance, agreeing with
the IJ that Mendez’s failure to file his applications for relief
was unreasonable. The Board also agreed with the IJ’s inter-
pretation of the petty offense exception, i.e., that the maxi-
mum penalty possible refers to the statutory maximum found
in 18 U.S.C. § 201; accordingly, the Board concluded that
Mendez did not qualify for the exception. Mendez filed a
timely petition for review.
STANDARDS OF REVIEW
Where, as here, “the BIA has conducted a de novo review
of the record, the Ninth Circuit’s review is limited to the
BIA’s decision, except to the extent the BIA expressly
adopted the IJ’s opinion.” Singh v. Ashcroft, 351 F.3d 435,
438 (9th Cir. 2003). We accordingly review the decision of
the Board. Determinations of “purely legal questions regard-
ing the Immigration and Nationality Act” are reviewed de
novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.
2003). Claims of due process violations are reviewed de novo.
MENDEZ-MENDEZ v. MUKASEY 5095
Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.
2007).
DISCUSSION
Mendez argues, first, that he qualifies for the petty offense
exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II) because the
maximum sentence he could have received under the sentenc-
ing guidelines for his 18 U.S.C. § 201 conviction was zero to
six months. Mendez’s second contention is that the IJ violated
his due process rights by unilaterally advancing the date of his
hearing from September 29 to August 27, 2004.3
I. Petty Offense Exception
[1] 8 U.S.C. § 1182 sets forth classes of aliens who are
inadmissible, including aliens who are convicted of certain
crimes. Section 1182(a)(2)(A)(i)(I) provides that aliens who
have committed a crime involving moral turpitude are inad-
missible, but § 1182(a)(2)(A)(ii) sets forth two exceptions.
The exception at issue here is the so-called petty offense
exception, which provides as follows:
3
Mendez also contends that his failure to file his applications for relief
was due to the ineffective assistance of his counsel, Davis. We lack juris-
diction to consider Mendez’s ineffective assistance claim because he
failed to raise it before the BIA. See, e.g., Singh v. Gonzales, 499 F.3d
969, 974 (9th Cir. 2007) (citing the “well-settled rule of exhaustion” that
the petitioner should have raised his ineffective assistance claim before the
IJ or the BIA); Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.
2000) (requiring “an alien who argues ineffective assistance of counsel to
exhaust his administrative remedies by first presenting the issue to the
BIA”). Moreover, Mendez has failed to comply with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), which
are a pre-condition to bring an ineffective assistance claim. Although “we
have dispensed with the Lozada obligations where counsel’s ineffective
assistance was obvious and undisputed on the face of the record,” Reyes
v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004), that is not the case here.
5096 MENDEZ-MENDEZ v. MUKASEY
Clause (i)(I) shall not apply to an alien who commit-
ted only one crime if . . . (II) the maximum penalty
possible for the crime of which the alien was con-
victed (or which the alien admits having committed
or of which the acts that the alien admits having
committed constituted the essential elements) did not
exceed imprisonment for one year and, if the alien
was convicted of such crime, the alien was not sen-
tenced to a term of imprisonment in excess of 6
months (regardless of the extent to which the sen-
tence was ultimately executed).
8 U.S.C. § 1182(a)(2)(A)(ii)(II).
[2] There is no question that the sentencing guideline range
for Mendez’s conviction under 18 U.S.C. § 201 was zero to
six months. Nor is there any dispute that the statutory maxi-
mum sentence is fifteen years. 18 U.S.C. § 201(b). The ques-
tion is whether the maximum penalty possible for purposes of
the petty offense exception refers to the guideline sentence or
the statutory maximum.
[3] The plain language of the statute indicates that the
phrase, “the maximum penalty possible,” refers to the statu-
tory maximum, not the maximum sentence under the sentenc-
ing guidelines. The petty offense exception has two
requirements: first, the maximum penalty possible must be
less than one year, and second, if the alien was convicted of
such a crime, the alien must have received a sentence of six
months or less. Thus, the statute already takes into consider-
ation the fact that the sentence imposed might be below the
maximum penalty possible.
[4] Moreover, the explicit language of the clause is more
sensibly read as referring to the statutory maximum. The first
requirement refers to “the maximum penalty possible for the
crime of which the alien was convicted.” 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II) (emphasis added). The maximum pen-
MENDEZ-MENDEZ v. MUKASEY 5097
alty accordingly is for the crime of conviction, not the maxi-
mum penalty to which the specific alien was exposed under
the guidelines.
This interpretation also is supported by the fact that the
exception to admissibility under § 1182(a)(2)(A)(i) applies
not only to an alien who has been convicted of such a crime,
but also to an alien who admits having committed such a
crime. Thus, in the case of an alien who has not suffered a
conviction of a crime involving moral turpitude, but instead,
has admitted committing such a crime, there is no guideline
range to which to look in order to determine the maximum
penalty possible. Rather, one would have to examine the stat-
ute that the alien admitted having violated.
We have addressed the question of whether a maximum
penalty refers to a statutory maximum or a guideline sentenc-
ing range maximum under statutes with slightly different lan-
guage from that at issue here. We consistently have concluded
that the relevant question is the statutory maximum, not the
maximum sentence that can be imposed on the particular
defendant.
For example, in United States v. Murillo, 422 F.3d 1152(9th Cir. 2005), cert. denied, 547 U.S. 1119 (2006), we
addressed 18 U.S.C. § 922(g)(1), the so-called felon-in-
possession statute, which criminalizes the possession of a fire-
arm by any person “who has been convicted in any court of[ ]
a crime punishable by imprisonment for a term exceeding one
year.” 18 U.S.C. § 922(g)(1). The question was whether the
defendant’s state convictions were predicate offenses. Both
crimes carried a statutory maximum term of imprisonment of
five years, but Murillo’s maximum possible term under the
state sentencing guidelines was twelve months, and he
received concurrent ten-month terms. We held that “the maxi-
mum sentence that makes a prior conviction under state law
a predicate offense under 18 U.S.C. § 922(g)(1) remains, after
[Blakely v. Washington, 542 U.S. 296 (2004)], the potential
5098 MENDEZ-MENDEZ v. MUKASEY
maximum sentence defined by the applicable state criminal
statute, not the maximum sentence which could have been
imposed against the particular defendant for his commission
of that crime according to the state’s sentencing guidelines.”
Murillo, 422 F.3d at 1155.
Similarly, in United States v. Rios-Beltran, 361 F.3d 1204(9th Cir. 2004), we addressed whether an Oregon conviction
qualified as a felony, for purposes of a sentencing increase
under U.S.S.G. § 2L1.2, which provides for an increase in
offense level if the defendant has a prior conviction for an
aggravated felony. The prior conviction is an aggravated fel-
ony “if it is ‘punishable by more than one year’s imprison-
ment under applicable state or federal law.’ ” Id. at 1207
(quoting United States v. Ballesteros-Ruiz, 319 F.3d 1101,
1103 (9th Cir. 2003)). The statutory maximum for Rios-
Beltran’s state conviction exceeded one year, but the sentence
that could be imposed under the Oregon sentencing guidelines
did not. Rios-Beltran accordingly argued that the court should
look to the state sentencing guidelines in order to determine
whether his prior conviction was punishable by more than a
year’s imprisonment.
We rejected this argument, stating that “[t]he actual sen-
tence imposed on an individual for a prior conviction, or the
actual sentence that potentially could have been imposed
based upon the particular facts of that person’s case, is not the
relevant inquiry.” Id. at 1208. Instead, “[w]e look to the maxi-
mum penalty allowed by law in determining whether a prior
conviction constitutes an aggravated felony under state law
for purposes of § 2L1.2.” Id.; see also United States v. Parry,
479 F.3d 722, 724-26 (9th Cir.) (rejecting the defendant’s
argument that “the Oregon Sentencing Guidelines must take
precedence over the maximum sentence prescribed by state
statute” in determining the maximum term of imprisonment
for purposes of the Armed Career Criminal Act), cert. denied,
128 S. Ct. 249 (2007).
MENDEZ-MENDEZ v. MUKASEY 5099
We also have examined a state conviction’s maximum pos-
sible sentence in order to determine deportability under 8
U.S.C. § 1227(a)(2)(A)(i), which describes classes of deport-
able aliens, including, as pertinent here, an alien convicted of
a crime involving moral turpitude “for which a sentence of
one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i). In Rusz v. Ashcroft, 376 F.3d 1182 (9th
Cir. 2004), we stated that we consistently have looked to the
statutory definition of an offense “ ‘in order to determine
whether a conviction constitutes a predicate offense for depor-
tation purposes.’ ” Id. at 1185 (quoting Tokatly v. Ashcroft,
371 F.3d 613, 620 (9th Cir.2004)).
When we have had the opportunity to examine the petty
offense exception, it has been in the context of offenses that
can be either a misdemeanor or felony under state law. Our
precedent, accordingly, has addressed only the impact of the
state court’s designation of the offense. For example, in
Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003), the
issue was the application of the petty offense exception to an
alien who argued that “his guilty plea conviction pursuant to
a California ‘wobbler’ statute, under which the offense may
be treated as either a misdemeanor or a felony, did not result
in a conviction of a crime for which the maximum penalty
exceeds imprisonment for one year.” Id. at 842. The state
court had declared the conviction to be a misdemeanor, not a
felony. We concluded that the state court’s designation of the
offense was binding on the BIA and that the petty offense
exception therefore applied. Id. at 845-46; see also Lafarga v.
INS, 170 F.3d 1213, 1216 (9th Cir. 1999) (holding that where
the alien was convicted of an offense classified under Arizona
law as an “undesignated” class 6 offense, and the state court
designated the offense as a misdemeanor after she completed
probation, the alien qualified for the petty offense exception
because the maximum possible sentence for a misdemeanor
under state law was six months).
Garcia-Lopez and Lafarga do not inform our inquiry.
Garcia-Lopez’s conclusion was based on the deference to be
5100 MENDEZ-MENDEZ v. MUKASEY
given the state court’s designation of the offense, and Lafarga
focused on the fact that the offense was specifically described
in the statute as undesignated. The question, accordingly, was
the effect of the state court’s action when it later designated
the offense as a misdemeanor. Neither case addresses the
question we face.
[5] We conclude that the more reasonable interpretation of
the phrase, “the maximum penalty possible,” in the petty
offense exception to inadmissibility is that it refers to the stat-
utory maximum sentence, not the guideline sentence to which
the alien is exposed. We hold that, because the statutory max-
imum term of imprisonment for Mendez’s bribery offense
was fifteen years, the petty offense exception does not apply.4
II. Due Process Claim
Mendez contends that the IJ violated his right to a full and
fair hearing by unilaterally advancing the hearing date from
September to August of 2004. He relies on Salgado-Diaz v.
Gonzales, 395 F.3d 1158 (9th Cir. 2005).
In its order dismissing the appeal, the BIA reasoned that
Mendez had three months, from the May 4, 2004, initial hear-
ing date until the August 6, 2004, deadline, in which to submit
his applications for relief. Moreover, “during this entire peri-
od,” Cosio was Mendez’s attorney of record, and he never
asked the court for more time in which to prepare the applica-
tions. The Board accordingly agreed with the IJ that Mendez’s
failure to file his applications for relief was unreasonable.
[6] Although immigration proceedings are “not subject to
the full range of constitutional protections,” an alien may
establish a violation of his Fifth Amendment right to due pro-
4
Although it was decided subsequent to Mendez’s conviction, United
States v. Booker, 543 U.S. 220, 245 (2005), which rendered the sentencing
guidelines advisory, also supports this interpretation.
MENDEZ-MENDEZ v. MUKASEY 5101
cess “by showing that he was denied ‘a full and fair hearing
of his claims and a reasonable opportunity to present evidence
on his behalf.’ ” Id. at 1162 (quoting Colmenar v. INS, 210
F.3d 967, 971 (9th Cir. 2000)). We disagree that Mendez has
made such a showing that his due process rights were vio-
lated. In Salgado-Diaz, the petitioner’s “unlawful arrest and
removal” completely “denied him his day in court, substitut-
ing a peremptory deportation for a considered immigration
court judgment.” Id. at 1163.
[7] Here, by contrast, despite the fact that the IJ advanced
the date of the hearing by a month, the IJ did hold a hearing
at which Davis was given the opportunity to argue in favor of
terminating the proceedings based on the petty offense excep-
tion to inadmissibility. The IJ also gave Cosio the opportunity
to explain what had happened when Mendez changed attor-
neys. Moreover, as the BIA reasoned, Mendez had three
months in which to file his applications for relief, and he
failed to do so. Unlike Salgado-Diaz, Mendez was not
deprived of the right to a full and fair hearing.
CONCLUSION
The plain language of 8 U.S.C. § 1182(a)(2)(A)(ii)(II) indi-
cates that the “maximum penalty possible” refers to the statu-
tory maximum, not the maximum guideline sentence to which
the alien was exposed. This conclusion is supported by our
interpretation of similar language in other contexts. The statu-
tory maximum term of imprisonment for Mendez’s bribery
offense is fifteen years; accordingly, he is ineligible for the
petty offense exception. Mendez’s due process rights were not
violated because he was not deprived of the right to a full and
fair hearing. Finally, Mendez has failed to exhaust his ineffec-
tive assistance claim. For the foregoing reasons, the petition
for review is
DENIED.