Martinez-Nieto v. Holder , 371 F. App'x 760 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LORENZO MARTINEZ-NIETO, No. 05-75663
Petitioner, Agency No. A075-693-753
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2010**
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
Lorenzo Martinez-Nieto (“Martinez”), a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming the immigration judge’s (“IJ”) denial of his application for cancellation
*
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).
of removal and the BIA’s denial of his motion to remand for consideration of his
application for adjustment of status.
We dismiss the petition in part and deny in part. Martinez’s conviction for
conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371 constituted a
crime of moral turpitude rendering him ineligible for cancellation relief. See 8
U.S.C. § 1229b(b)(1)(B) & (C). The plea agreement states expressly that Martinez
and his co-conspirator “agreed to defraud the INS by fraudulently obtaining
permanent residence status and a ‘green card’ for MARTINEZ.” Thus, the record
of conviction makes clear that Martinez was convicted for “conspiracy to defraud”
a federal agency and that he possessed the intent to defraud required for a moral
turpitude offense. See McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per
curiam) (explaining that a crime involving “the intent to defraud clearly is one
involving moral turpitude”).
Since the filing of this appeal, the Department of Homeland Security denied
Martinez’s spousal visa petition, and the BIA dismissed Martinez’s administrative
appeal. Consequently, his request for a remand in order to seek adjustment of
status is moot. See DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1174
(9th Cir. 2005) (order).
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Finally, Martinez failed to allege a colorable equal protection challenge to
the IJ’s refusal to grant a continuance, but rather simply dressed up his challenge to
the IJ’s abuse of discretion in “constitutional garb.” See Torres-Aguilar v. INS,
246 F.3d 1267, 1271 (9th Cir. 2001). Consequently, we lack jurisdiction to review
this claim. See 8 U.S.C. § 1252(a)(2)(C).
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
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