Douglas Calderon Molina v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS ULISES CALDERON No. 10-71100
MOLINA,
Agency Nos. A070-865-997
Petitioner, A097-112-666
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 11, 2018
San Francisco, California
Before: SCHROEDER, GOULD, and DIAZ,** Circuit Judges.
Salvadoran native, Douglas Ulises Calderon Molina, seeks review of the
Board of Immigration Appeals’s (“BIA”) decision to dismiss his applications for
cancellation of removal under 8 U.S.C. § 1229b(b)(1) and voluntary departure
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Albert Diaz, United States Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
under 8 U.S.C. § 1229c(b). We deny in part and dismiss in part the petition for
review.
We review legal questions de novo. Vilchez v. Holder, 682 F.3d 1195, 1198
(9th Cir. 2012). But if there is “binding agency precedent on-point in the form of a
published BIA opinion, we consider whether Chevron deference is appropriate.”
Mendez-Garcia v. Lynch, 840 F.3d 655, 663 (9th Cir. 2016) (internal quotation
marks omitted). If Congress has not directly spoken to the question at issue, we
will uphold the BIA’s interpretation as long as it is “based on a permissible
construction of the statute.” Id. (citation omitted).
We deny the petition as to Molina’s application for cancellation of removal.
The BIA correctly found Molina ineligible for cancellation of removal because he
was convicted of two crimes involving moral turpitude (“CIMTs”), which are
disqualifying offenses under 8 U.S.C. § 1182(a)(2). We recognize that each
conviction, on its own, may fall under an exception set forth in 8 U.S.C.
§ 1182(a)(2)(A)(ii), but that provision only applies to applicants convicted of one
crime of moral turpitude. Molina stands convicted of two.
First, Molina was convicted of petty theft under Cal. Penal Code § 490.5,
which we have repeatedly recognized as a CIMT. See Castillo-Cruz v. Holder,
581 F.3d 1154, 1160 (9th Cir. 2009) (citing cases). Molina argues his conviction
should not constitute a CIMT because he was a juvenile at the time he committed
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the offense. However, “where a juvenile offender is charged and convicted as an
adult under state law, the offender has a ‘conviction’ for purposes of the INA.”
Rangel-Zuazo v. Holder, 678 F.3d 967, 968 (9th Cir. 2012) (per curiam) (citing
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922‒23 (9th Cir. 2007)).
Second, Molina was convicted of assault with a deadly weapon under Cal.
Penal Code § 245(a)(1). Because Molina’s petty theft conviction is a CIMT, his
case hinges on whether his assault with a deadly weapon conviction is as well. In
answering this question, we are not writing on a blank slate. The BIA has recently
held, in a published opinion, that a conviction under Cal. Penal Code § 245(a)(1) is
categorically a CIMT for purposes of the INA. Matter of Wu, 27 I. & N. Dec. 8, 9
(BIA 2017). We therefore proceed under Chevron1 to consider whether the BIA’s
opinion is “based on a permissible construction of the statute.” Mendez-Garcia,
840 F.3d at 663 (citation omitted); see Rohit v. Holder, 670 F.3d 1085, 1088 (9th
Cir. 2012). In Matter of Wu, the BIA weighed the level of danger posed by the
perpetrator’s conduct along with his degree of mental culpability. See 27 I. & N.
Dec. at 11‒15. It concluded that the offense is no less base, vile, and depraved
than other CIMT offenses, like reckless aggravated assault. Id. at 15.
The BIA did recognize that the offense requires a unique mental state. A
defendant guilty of assault under § 245(a)(1) “must be aware of the facts that
1
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
3
would lead a reasonable person to realize that a battery would directly, naturally
and probably result from his conduct,” but he “need not be subjectively aware of
the risk that a battery might occur.” Id. at 13 (quoting People v. Williams, 29 P.3d
197, 202 (Cal. 2001)). Despite this, the BIA held that the offense involves a
sufficiently culpable mental state to constitute a CIMT because it “requires proof
of an intentional ‘violent act’ with a deadly weapon.” Id. at 14. The BIA relied on
United States v. Grajeda where we held that a conviction under § 245(a)(1) is a
crime of violence, in part because the offense requires a mens rea of more than
mere negligence or recklessness. 581 F.3d 1186, 1190‒91 (9th Cir. 2009).
Finally, the BIA reasoned that it was “not aware of any cases in which this unique
mental state has led to the prosecution of an individual for conduct that is not
turpitudinous” so “there is no realistic probability that section 245(a)(1) will be
used to prosecute such conduct.” Matter of Wu, 27 I. & N. Dec. at 16.
We note that a different panel of this court has requested supplemental
briefing on whether the Supreme Court’s recent decision in Sessions v. Dimaya,
138 S. Ct. 1204 (2018), calls into question Grajeda’s holding that § 245(a)(1) is a
crime of violence. But that is of no consequence here given that in Matter of Wu,
the BIA relied principally on Grajeda’s view of § 245(a)(1)’s mens rea
requirement.
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Congress has not defined or otherwise described what constitutes a crime of
moral turpitude in the INA, and so we grant deference to the BIA’s reasonable
interpretation in Matter of Wu. See Chevron, 467 U.S. at 843‒44. Because Molina
has been convicted of two CIMTs—petty theft and assault with a deadly weapon—
he is statutorily ineligible for cancellation of removal.
Finally, we dismiss the petition as to Molina’s application for voluntary
departure because we lack jurisdiction to consider his arguments. See 8 U.S.C.
§ 1229c(f) (“No court shall have jurisdiction over an appeal from denial of a
request for an order of voluntary departure under subsection (b) . . . .”); see also
Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1166 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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