Celia Heredia-Guzman v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CELIA HEREDIA-GUZMAN, AKA Celia No. 19-71492
Heredia Guzman,
Agency No. A098-408-778
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2023**
San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
Celia Heredia-Guzman, a native and citizen of Mexico, petitions for review
of a decision by the Board of Immigration Appeals (“BIA”) affirming the
immigration judge’s (“IJ”) order denying cancellation of removal. The BIA
*
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).
concluded that Heredia-Guzman’s conviction under California Welfare and
Institutions Code § 10980(c)(2) qualifies as a crime involving moral turpitude
(“CIMT”) under 8 U.S.C. § 1227(a)(2), rendering her ineligible for cancellation of
removal under 8 U.S.C. § 1229b(b)(1)(C). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
1. Heredia-Guzman does not dispute that her conviction for welfare
fraud under § 10980(c)(2) qualifies as a CIMT. See 8 U.S.C. § 1227(a)(2).
Instead, she disputes that her offense carried a maximum sentence of at least one
year. See 8 U.S.C. § 1227(a)(2)(A)(i)(II). On January 1, 2015, the California
legislature enacted California Penal Code § 18.5, which reduced the maximum jail
sentences for misdemeanor convictions from “up to or not exceeding one year” to
“a period not to exceed 364 days.” Cal. Penal Code § 18.5 (2015). Two years
later, effective January 1, 2017, the California legislature amended § 18.5 to apply
retroactively to all misdemeanor convictions, regardless of whether the conviction
was finalized on or before the statute’s original enactment date. Cal. Penal Code
§ 18.5. Heredia-Guzman argues that this reduction applies retroactively to her
conviction under § 10980(c)(2) for purposes of § 1227(a)(2)(A)(i). See 8 U.S.C.
§ 1227(a)(2)(A)(i)(II). In rejecting this argument, the BIA relied on its decision in
Matter of Valesquez-Rios, 27 I. & N. Dec. 470, 473 (BIA 2018), in which it held
that the state amendment did not affect the applicability of § 1227(a)(2)(A)(i)(II) to
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a past CIMT conviction because the BIA looks to the maximum possible sentence
at the time of conviction. In Velasquez-Rios v. Wilkinson, we affirmed the BIA,
“hold[ing] that California’s amendment to § 18.5 of the California Penal Code . . .
cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).” 988 F.3d
1081, 1089 (9th Cir. 2021). Accordingly, Heredia-Guzman remains “convicted of
a crime for which a sentence of one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(II).
2. Heredia-Guzman also argues that her conviction does not qualify as
an “offense under” § 1227(a)(2) because it is eligible for the “petty offense”
exception set forth in 8 U.S.C. § 1182(a)(2)(A)(ii). We have held that a
“conviction for an offense described in § 1227(a)(2)” renders a petitioner
statutorily ineligible for cancellation of removal “[r]egardless of whether h[er]
conviction may meet the requirements of the petty offense exception in
§ 1182(a)(2)(A)(ii).” Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1056–57 (9th
Cir. 2010). Indeed, we recently rejected an argument identical to Heredia-
Guzman’s in Ortega-Lopez v. Barr, in which we deferred to the BIA’s conclusion
that, “pursuant to the cross-reference in § 1229b(b)(1)(C), [a noncitizen] is
ineligible for cancellation of removal if the [noncitizen] has been convicted of a
[CIMT] for which a sentence of one year or more may be imposed, regardless
whether the [noncitizen] meets the immigration prerequisites for inadmissibility or
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deportability.” 978 F.3d 680, 692 n.11, 693 (9th Cir. 2020).
Heredia-Guzman filed a letter filed pursuant to Rule 28(j) citing Reyes v.
Garland, 11 F.4th 985 (9th Cir. 2021). She purports that the BIA changed the
adjudicatory rule as to whether a CIMT conviction qualifying for the “petty
offense” exception bars cancellation of removal, thus changing the legal
consequences of her conviction. Id. at 995 (“[A] law is retroactive if it changes the
legal consequences of acts completed before its effective date[.]” (cleaned up)).
Heredia-Guzman argues that we must therefore engage in a retroactivity analysis.
Citing Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003), she
claims that, at the time of her conviction under § 10980(c)(2) in 2005, she would
not have been barred from cancellation of removal if the “petty offense” exception
applied. Her argument fails. In Ortega-Lopez, we wrote:
Garcia-Hernandez held that § 1229b(b)(1)(C) incorporated the “petty
offense” exception set forth in § 1182(a)(2)(A)(ii)(I), so that an alien who
has been convicted of a crime involving moral turpitude that falls within this
exception is not ineligible for cancellation of removal. In explaining its
reasoning, Garcia-Hernandez stated that it “view[ed] the plain language of
[§ 1229b(b)(1)(C)] as incorporating the entirety of [§ 1182(a)(2)], including
the exception for petty offenses set forth therein.” This broad statement has
been abrogated in part by Gonzalez-Gonzalez [v. Ashcroft], which held that
“[t]he plain language of § 1229b indicates that it should be read to cross-
reference a list of offenses in three statutes, rather than the statutes as a
whole.” 390 F.3d [649, 652 (9th Cir. 2004)]. In light of this ruling,
[Petitioner] cannot rely on Garcia-Hernandez for the principle that § 1229b
incorporates § 1227(a)(2) as a whole. Therefore, we reject [Petitioner’s]
argument that the BIA’s interpretation here conflicts with Garcia-
Hernandez.
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978 F.3d at 692 n.11. Gonzalez-Gonzalez was issued in 2004, before Heredia-
Guzman’s conviction. At no time could she have relied on Garcia-Hernandez’s
abrogated reasoning to argue that her CIMT conviction did not render her
ineligible for cancellation of removal due to the “petty offense” exception.1 Thus,
she points to no change in the legal consequences of her conviction that would
warrant a retroactivity analysis.
3. Because Heredia-Guzman is ineligible for cancellation of removal
under § 1229b(b)(1)(C), we need not determine whether her daughter, who reached
the age of majority during the pendency of this case, remains a qualifying relative
under § 1229b(b)(1)(D).
PETITION DENIED.
1
Heredia-Guzman’s reliance on Matter of Gonzalez-Zoquipan, 24 I. & N. Dec. 549(BIA 2008), is also meritless because the noncitizen in that case, unlike Heredia-
Guzman, “would have remained eligible for cancellation of removal . . . because
the maximum penalty possible for his misdemeanor conviction was less than 1
year of imprisonment.” Matter of Cortez Canales, 25 I. & N. Dec. 301, 310 (BIA
2010) (citation omitted).
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