Mario Rivera v. Eric Holder, Jr. ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1404
MARIO RIVERA, a/k/a Mario Antonio Rivers,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 18, 2012 Decided: September 28, 2012
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Steffanie J. Lewis, THE INTERNATIONAL BUSINESS LAW FIRM, PC,
Washington, D.C. for Petitioner. Stuart F. Delery, Acting
Assistant Attorney General, Ada E. Bosque, Senior Litigation
Counsel, Lindsay Corliss, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Rivera, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order denying his application for special rule
cancellation of removal under § 203 of the Nicaraguan Adjustment
and Central American Relief Act (“NACARA”) (Pub. L. No. 105-100,
111 Stat. 2160). Rivera challenges the findings that his
conviction for sexual battery was a crime involving moral
turpitude, that he was not a person of good moral character and
that his removal would not be an exceptional and extremely
unusual hardship to him and his family. We deny the petition
for review.
We have noted that Congress did not define a crime
involving moral turpitude. See Yousefi v. INS, 260 F.3d 318,
325-26 (4th Cir. 2001). We accord substantial deference to the
Board’s determination of what type of conduct involves moral
turpitude. Id. at 326. The interpretation must not be an
unreasonable one. Id. The Board looks to the elements of the
offense rather than the facts surrounding the crime. Id.The Board has defined a crime involving moral
turpitude as being “‘inherently base, vile, or depraved, and
contrary to accepted rules of morality and the duties owed
between persons or to society in general.’” Prudencio v.
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Holder, 669 F.3d 472, 484-85 (4th Cir. 2012) (quoting Matter of
Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006)).
Generally, the categorical approach involves giving
consideration “only to the essential elements of the offense and
the fact of conviction.” United States v. Baxter, 642 F.3d 475,
476 (4th Cir. 2011). In order to find that a conviction was a
crime involving moral turpitude under the categorical approach
that was utilized in this case, the Board and the immigration
judge must determine whether the crime at issue categorically
involves moral turpitude by examining “whether there is a
‘realistic probability, not a theoretical possibility,’” that
the criminal statute “would be applied to reach conduct that
does not involve moral turpitude.” Matter of Silva-Trevino, 24
I. & N. Dec. 687, 690 (BIA 2009). “This realistic probability
can be established by showing that, in at least one other case,
the state courts in fact did apply the statute in the special
(nongeneric) manner[.]” Nunez v. Holder, 594 F.3d 1124, 1129
(9th Cir. 2010) (internal quotation marks omitted). It is
Rivera’s burden to establish that he is qualified for NACARA
relief. See 8 C.F.R. § 1240.66(c) (2012). Thus, he must show
that the conviction can be applied in a way that would not be
considered a crime involving moral turpitude.
We conclude that the Board did not err in finding that
Rivera’s conviction for Va. Code Ann. § 18.2-67.4 (2009), Sexual
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Battery, is categorically a crime involving moral turpitude.
Rivera failed to show that the statute could be applied in a way
that would not involve moral turpitude.
Because Rivera was inadmissible due to a prior
conviction for a crime involving moral turpitude, in order to
establish eligibility for relief under the NACARA, he needed to
show that he was of good moral character during the ten year
period of continuous presence following the commission of the
offense and that his removal would be an exceptional and
extremely unusual hardship to him and his family. See 8 C.F.R.
§ 1240.66(c).
In Barahona v. Holder, __ F.3d __, 2012 WL 3264386, *3
(4th Cir. 2012), we noted that the court does not have
jurisdiction to review factual findings or discretionary denials
of relief under the NACARA, except to review constitutional
claims and questions of law. Thus, the findings that Rivera was
not of good moral character or that his removal would not be an
exceptional and extremely unusual hardship, to the extent based
on factual findings and discretion, are not reviewable.
Rivera attempts to fashion his arguments against the
discretionary findings as reviewable questions of law. However,
we conclude that he has failed to raise such reviewable
questions. Thus, we are without jurisdiction to review the
discretionary finding that Rivera was not a person of good moral
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character or that his removal would not be an exceptional and
extremely unusual hardship.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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