Erika Loza-Rodriguez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIKA PILAR LOZA-RODRIGUEZ, No. 18-70451
Petitioner, Agency No. A088-746-763
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 14, 2020**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,*** District
Judge.
Erika Pilar Loza-Rodriguez challenges the Board of Immigration Appeals’
determination that she is not eligible for the petty offense exception under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
§ 1182(a)(2)(A)(ii)(II). We have jurisdiction under 8 U.S.C. § 1252 and review the
legal determinations regarding a noncitizen’s eligibility for cancellation of removal
de novo. Camacho-Cruz v. Holder, 621 F.3d 941, 942 n.1 (9th Cir. 2010). We deny
the petition for review.
1. Factual Background. Loza-Rodriguez is a Mexican citizen who entered
the United States without inspection. In June 2009, she pleaded guilty to attempted
battery with substantial bodily harm, a gross misdemeanor under Nevada law. The
court imposed an 11-month suspended sentence with 18 months’ probation. She
completed the sentence without incident and ultimately served no jail time. In
January 2013, the Department of Homeland Security initiated removal proceedings
against Loza-Rodriguez for her unlawful presence in the United States. Loza-
Rodriguez applied for cancellation of removal, arguing that her prior conviction
satisfied the petty offense exception.
2. Petty offense exception. Cancellation of removal for certain nonpermanent
residents is available when the applicant can show she has been physically present
in the United States for a continuous period of at least 10 years, has been a person
of good moral character during that time frame, has not been convicted of certain
specified offenses, and has established that removal would result in exceptional and
extremely unusual hardship to the noncitizen’s spouse, parent, or child who is a
United States citizen or lawful permanent resident. 8 U.S.C. §1229b(b)(1). The
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Immigration Judge determined Loza-Rodriguez was not eligible for cancellation of
removal because she had been convicted of a crime involving moral turpitude and
that she did not qualify for the petty offense exception.
Under the petty offense exception, noncitizens who have committed only one
crime involving moral turpitude are not deemed inadmissible when “the maximum
penalty possible for the crime of which the [noncitizen] was convicted . . . did not
exceed imprisonment for one year and, if the [noncitizen] was convicted of such
crime, the [noncitizen] was not sentenced to a term of imprisonment in excess of 6
months (regardless of the extent to which the sentence was ultimately executed).” 8
U.S.C. § 1182(a)(2)(A)(ii)(II). Under the statute’s plain language—“regardless of
the extent to which the sentence was ultimately executed”—Loza-Rodriguez does
not qualify for the exception because the sentence exceeded six months.
Relying on United States v. Gonzalez, 506 F.3d 940, 944–45 (9th Cir. 2007)
(en banc), Loza-Rodriguez contends that because this court has held that a suspended
sentence does not constitute a “term of imprisonment” for purposes of United States
Sentencing Guidelines § 4A1.2(c)(1), her 11-month suspended sentence should not
count in the present context for purposes of removability. This argument is
unavailing in this context, where the statutory language is clear. Moreover, Congress
has specifically stated what it means by “term of imprisonment” in reference to
inadmissibility determinations. See 8 U.S.C. § 1101(a)(48)(B) (“Any reference to a
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term of imprisonment or a sentence with respect to an offense is deemed to include
the period of incarceration or confinement ordered by a court of law regardless
of any suspension of the imposition or execution of that imprisonment or sentence in
whole or in part.”) (emphasis added).
Petition for review is DENIED.
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