Ramon Dominguez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON GONZALEZ DOMINGUEZ, AKA No. 20-71372
Lil Rams, AKA Rams,
Agency No. A043-439-804
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 9, 2022
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and ROBRENO,** District
Judge.
Ramon Gonzalez Dominguez, a native and citizen of Mexico who came to
the United States as a lawful permanent resident (“LPR”), petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
decision by the immigration judge ordering him removed to Mexico. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. The immigration court did not lack jurisdiction over Dominguez’s
removal proceedings. The Notice to Appear (“NTA”) charged Dominguez with
removability based on a California conviction for “Assault with a Deadly Weapon,
in violation of Section 245(a)(2) of the California Penal Code.” Dominguez was
indeed convicted of § 245(a)(2), which criminalizes assault with a firearm. That
subsection falls under a broader provision that generally encompasses assault with
a deadly weapon or force likely to produce great bodily injury. Cal. Penal Code
§ 245. A neighboring subsection punishes assault “with a deadly weapon or
instrument other than a firearm.” § 245(a)(1). Dominguez contends that the NTA
failed to identify the charges against him because it conflated two provisions of the
penal code—assault with a deadly weapon, § 245(a)(1), and assault with a firearm,
§ 245(a)(2). We disagree. The NTA identified the correct statutory subsection,
§ 245(a)(2), and the words “Assault with a Deadly Weapon” were merely a more
generic description of the offense. See, e.g., Cal. Penal Code § 186.22 (referring to
“Assault with a deadly weapon or by means of force likely to produce great bodily
injury, as defined in Section 245”). The NTA therefore accurately identified the
“charges against [Dominguez] and the statutory provisions alleged to have been
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violated.” 8 U.S.C. § 1229(a)(1)(D).1
2. Dominguez argues that he is not removable because his prior conviction is
not categorically a “crime of violence” under 18 U.S.C. § 16(a). But we have
previously held that “assault with a firearm under California Penal Code section
245(a)(2) is categorically a ‘crime of violence’ and an ‘aggravated felony’ for
immigration purposes.” United States v. Heron-Salinas, 566 F.3d 898, 899 (9th
Cir. 2009). We have since reaffirmed and extended that holding to assault with a
deadly weapon other than a firearm under § 245(a)(1). United States v. Vasquez-
Gonzalez, 901 F.3d 1060 (9th Cir. 2018); United States v. Grajeda, 581 F.3d 1186(9th Cir. 2009). Dominguez argues that the Supreme Court’s decisions in
Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579
U.S. 500 (2016), have undermined the reasoning of our prior decisions, but
Descamps and Mathis did not change the categorical approach in any way relevant
to the inquiry here. Because those cases are not “clearly irreconcilable” with our
prior decisions, Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), we
are bound by our prior holding that § 245(a)(2) is categorically a crime of violence.
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Because we hold that there was no defect in the NTA, we need not address
whether an error in an NTA could deprive an immigration court of jurisdiction.
Similarly, we need not reach Dominguez’s arguments in the alternative that the
putative error violated due process or a mandatory claim-processing rule. We
accordingly need not address the Government’s contention that Dominguez failed
to exhaust his jurisdictional and due process arguments.
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3. The BIA did not err in holding that Dominguez was ineligible for
adjustment of status. The BIA appropriately concluded that § 245(a)(2) is a crime
involving moral turpitude. In so concluding, the BIA cited its precedential
decision in Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017), which held that assault
with a deadly weapon other than a firearm under § 245(a)(1) is a crime involving
moral turpitude. We have already approved of Matter of Wu in Safaryan v. Barr,
975 F.3d 976, 988 (9th Cir. 2020), and the logic of both cases extends readily to
assault with a firearm under § 245(a)(2). The BIA therefore appropriately
concluded that Dominguez was ineligible for adjustment of status absent a waiver
of inadmissibility.
Because Dominguez was admitted as an LPR and later convicted of an
aggravated felony, he is statutorily ineligible for a § 212(h) waiver of
inadmissibility. 8 U.S.C. § 1182(h). Dominguez contends that it is
unconstitutional to distinguish for such eligibility between LPRs who were
admitted as LPRs and LPRs who adjusted to LPR status after admission. But “a
statute that limits the relief available to a certain class of [noncitizens] will be
‘valid unless wholly irrational.’” Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir.
2002) (quoting Perez-Oropeza v. INS, 56 F.3d 43, 45 (9th Cir. 1995)). Because
rational basis review permits Congress to take reforms “one step at a time,
addressing itself to the phase of the problem which seems most acute to the
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legislative mind,” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489
(1955), we conclude that the distinction Dominguez challenges is not wholly
irrational. Dominguez’s equal protection challenge therefore fails, leaving him
ineligible for a waiver of inadmissibility.
PETITION DENIED.
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