Jose Prieto-Hernandez v. Loretta E. Lynch , 653 F. App'x 547 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 29 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO PRIETO- No. 13-70874
HERNANDEZ,
Agency No. A028-956-109
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2015
San Francisco, California
Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.
Petitioner Jose Alberto Prieto-Hernandez (“Prieto”) seeks review of the
Board of Immigration Appeals’ (the “BIA’s”) dismissal of Prieto’s appeal of the
immigration judge’s (“IJ’s”) removal order, which denied and/or pretermitted
Prieto’s applications for asylum, withholding of removal, cancellation of removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under the Immigration and Nationality Act (“INA”) and special rule cancellation of
removal under the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”). For the reasons set forth herein, we deny in part and dismiss in part
Prieto’s petition for review.
1. The IJ concluded that Prieto had no reasonable expectation of future
persecution, which is a predicate to eligibility for both asylum and withholding of
removal. Prieto failed to challenge such finding before either the BIA or this
Court, and has thus waived any argument to the contrary. See, e.g., Zehatye v.
Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). This waiver strips us of
jurisdiction to consider whether the IJ’s determination was supported by
substantial evidence, Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per
curiam); 8 U.S.C. § 1252(d), and renders us unable to grant any effective relief
with respect to Prieto’s claims for asylum and withholding of removal.
2. Finally, Prieto is ineligible for cancellation of removal under the INA and
for NACARA special rule cancellation because Prieto’s 1997 conviction for receipt
of stolen property under California Penal Code § 496(a) is a “theft offense” within
the meaning of 8 U.S.C. § 1101(a)(43)(G), and Prieto received a sentence of 365
days. Id. (defining the term “aggravated felony” as including theft offenses that
carry a prison term of “at least one year”); Verdugo-Gonzalez v. Holder, 581 F.3d
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1059, 1061–62 (9th Cir. 2009); see also 8 U.S.C. §§ 1229b(b)(1)(C),
1227(a)(2)(A)(iii) (together, providing that an aggravated felony bars cancellation
of removal); 8 C.F.R. § 1240.66(c) (same for “special rule” cancellation under
NACARA).
Neither California Penal Code § 18.5 nor the California Superior Court’s
recharacterization of Prieto’s offense as a “misdemeanor” helps Prieto. We have
repeatedly held that a state court’s characterization of a conviction has no effect on
federal immigration law. See, e.g., Habibi v. Holder, 673 F.3d 1082, 1088 (9th
Cir. 2011) (“[W]hether a state classifies an offense as a ‘misdemeanor’ is irrelevant
to determining whether it is an ‘aggravated felony’ for purposes of federal law.”);
see also Ramirez-Castro v. I.N.S., 287 F.3d 1172, 1174 (9th Cir. 2002) (“For
immigration purposes, a person continues to stand convicted of an offense
notwithstanding a later expungement under a state’s rehabilitative law.” (emphasis
added)). Section 18.5 does not change the fact that Prieto’s actual sentence was
365 days. See Alberto-Gonzalez v. I.N.S., 215 F.3d 906, 910 (9th Cir. 2000) (The
phrase, “one year or more” in section 1101(a)(43)(G) “refer[s] to the actual
sentence imposed by the trial judge.”).
Prieto’s reliance on Tapia v. Superior Court, 807 P.2d 434 (Cal. 1991) is
misplaced for the same reason: California’s determination that a statute applies
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retroactively to modify the nature of a state-court conviction has no effect on the
classification of that offense for purposes of federal immigration law. See, e.g.,
Ramirez-Castro, 287 F.3d at 1174. And even were Tapia relevant, it would not
apply here. Tapia merely held that, when a change in law that clearly benefits the
defendant occurs between the commission of an offense and the trial for that
offense, the new law “may be applied to pending cases.” Tapia, 807 P.2d at 446.
Prieto’s theft case is not “pending.” Prieto pled guilty to a theft offense in 1997.
The change in law occurred nearly two decades later. It is not at all clear under
Tapia that even California would apply § 18.5 retroactively in these circumstances.
3. Prieto is ineligible for all relief sought for the reasons set forth above; thus,
we need not consider whether the persecutor bar also precludes the same relief.
We accordingly DENY IN PART and DISMISS IN PART Prieto’s petition
for review.
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