Carlos Molina v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS EDGAR MOLINA, No. 15-71625
Petitioner, Agency No. A035-982-742
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM *
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2017
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and DONATO,** District
Judge.
Carlos Edgar Molina, a native and citizen of Colombia, petitions for review
of the Board of Immigration Appeals’ dismissal of his appeal from an Immigration
Judge’s decision denying his applications for relief. Molina has never disputed and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
he does not now dispute that he was in fact removable on the basis of his 1982
conviction for Lewd Acts Upon a Child Under Fourteen Years of Age in violation
of California Penal Code Section 288, which he acknowledges constituted a crime
involving moral turpitude under Section 237(a)(2)(A)(i) of the Immigration and
Nationality Act (INA). 8 U.S.C. § 1227(a)(2)(A)(i). We have jurisdiction under 8
U.S.C. § 1252 except as to Molina’s challenge to the BIA’s discretionary denial of
relief under former Section 212(c) of the INA, and we deny the petition.
Molina asserts that the BIA erred when it found no reversible error in the
Immigration Judge’s decision that he was not credible, but this is an illusory
argument. The BIA did not rely on the IJ’s adverse credibility finding, and to the
extent it mentioned Molina’s credibility at all, the BIA assumed he was credible
for purposes of its decision.
Molina next argues that the BIA erred in finding that he was ineligible for a
waiver of inadmissibility under Section 212(h) (and therefore also for an
adjustment of status under Section 245(a)), because his 1982 conviction could not
properly be considered an “aggravated felony” under the INA. He relies on
Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), for that position, but
his reliance is misplaced. While Ledezma-Galicia held that an alien could not be
rendered removable by reason of a sexual abuse of a minor conviction that
occurred prior to November 18, 1988 (the effective date of the Anti-Drug Abuse
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Act of 1988), 636 F.3d at 1080, it did not speak to whether or not the pre-ADAA
offense could still be characterized as an “aggravated felony” for purposes of
precluding relief from removability. Ledezma-Galicia in fact recognized that the
classification of a crime as an aggravated felony is a separate issue from
removability for that crime, 636 F.3d at 1065, and it left intact the settled law in
our circuit that a conviction that pre-dates November 1988 may nevertheless be
considered an “aggravated felony” under current immigration law. See Lopez-
Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir. 2006); Becker v. Gonzales,
473 F.3d 1000, 1002 (9th Cir. 2007); see also Alvarez-Barajas v. Gonzales, 418
F.3d 1050, 1054-55 (9th Cir. 2005) (holding that Section 212(h)’s aggravated
felony bar applies retroactively). The BIA consequently did not err in finding
Molina ineligible for a Section 212(h) waiver (and in turn for an adjustment of
status under Section 245(a)) because his 1982 conviction under California Penal
Code Section 288 constituted an aggravated felony.
We decline to review for lack of jurisdiction Molina’s challenge to the
BIA’s discretionary denial of relief to him under former Section 212(c) of the INA.
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007).
We conclude that the BIA’s decision to deny deferral of deportation under
the Convention Against Torture was amply supported by substantial evidence, as
the BIA pointed to “such relevant evidence as reasonable minds might accept as
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adequate to support it, even if it is possible to reach a contrary result on the basis of
the evidence.” Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005).
This evidence included the fact that despite Molina’s claim that he was raped by a
police officer in Colombia on two occasions when he was 7 (i.e., roughly 65 years
ago), he has since returned to the country three times and was not tortured.
PETITION FOR REVIEW DENIED.
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