Jaime Cortez v. Eric Holder, Jr. , 584 F. App'x 493 ( 2014 )

FILED
NOT FOR PUBLICATION AUG 12 2014
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME ERNESTO CORTEZ, AKA Jaime No. 10-71532
Cortez,
Agency No. A028-972-278
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued June 13, 2014 Submitted July 11, 2014
San Francisco, California
Before: O’SCANNLAIN, SACK**, and BEA, Circuit Judges.
Jaime Ernesto Cortez petitions for review of the Board of Immigration
Appeals’ final order of removal. We deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
1. Sexual battery in violation of California Penal Code § 243.4(a) is a crime
involving moral turpitude that renders Cortez removable under 8 U.S.C. §
1227(a)(2)(A)(i). See Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th
Cir. 2013) (California Penal Code § 243.4(e) is a crime involving moral turpitude);
People v. King, 108 Cal. Rptr. 3d 333, 370 (Cal. App. 2010) (“Misdemeanor sexual
battery [§ 243.4(e)] is a lesser included offense of sexual battery by restraint [§
243.4(a)].”).
2. Cortez’s conviction does not qualify for the petty offense exception to
inadmissibility in 8 U.S.C. § 1182(a)(2)(A)(ii)(II). California Penal Code §
243.4(a) permits a maximum possible sentence of greater than one year. Cortez
was sentenced to 300 days’ imprisonment as a condition of probation. Cortez’s
sentence was not reduced or vacated for immigration purposes. The California
state court denied Cortez’s motion to reduce Cortez’s sentence to less than six
months’ imprisonment. The state court’s reduction of Cortez’s conviction to a
misdemeanor does not mean that Cortez’s sentence was automatically reduced to
six months or less. See Cal. Penal Code § 19 (allowing misdemeanors to be
punished by sentences greater than six months if permitted by law); Ceron v.
Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc). Further, California Penal
Code § 1203.4 does not remove the federal immigration consequences of a
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conviction and sentence. Ramirez-Castro v. I.N.S., 287 F.3d 1172, 1175 (9th Cir.
2002).
3. We have already held that California Penal Code § 243.4(a) is a “crime of
violence” under the immigration act. Lisbey v. Gonzales, 420 F.3d 930, 933–34
(9th Cir. 2005). Thus, the Board of Appeals did not err in finding that California
Penal Code § 243.4 is a “violent or dangerous crime” for purposes of 8 C.F.R. §
1212.7(d).
The petition for review is DENIED.
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