Santos Eusebio Pizano v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SANTOS EUSEBIO PIZANO, No. 15-70120
Petitioner, Agency No. A095-746-754
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Santos Eusebio Pizano, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s denial of cancellation of removal. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review de novo questions of law. Espino-
*
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).
Castillo v. Holder, 770 F.3d 861, 863 (9th Cir. 2014). We deny in part and dismiss
in part the petition for review.
Pizano has not established any error in the agency’s determination that his
conviction under California Penal Code § 530.5(c)(1) is categorically a conviction
for a crime involving moral turpitude (“CIMT”) because it requires proof of an
“intent to defraud” as an element of the crime. See Espino-Castillo, 770 F.3d at
863-64 (recognizing the “longstanding rule that crimes that have fraud as an
element are categorically crimes involving moral turpitude,” and a “court may not
apply the modified categorical approach if the statute proscribes only conduct that
involves moral turpitude”) (alterations, citations, and quotation marks omitted).
Because Pizano’s conviction is punishable by “imprisonment in a county jail not to
exceed one year,” California Penal Code § 530.5(c)(1), it is an offense “for which a
sentence of one year or longer may be imposed,” which renders the conviction one
described under section 8 U.S.C.§ 1227(a)(2)(A)(i)(II). See Ceron v. Holder, 747
F.3d 773, 777-78 (9th Cir. 2014) (en banc) (explaining classification as a felony or
misdemeanor is irrelevant where the maximum punishment for the misdemeanor
offense is one year). Accordingly, Pizano is ineligible for cancellation of removal.
See 8 U.S.C. § 1229b(b)(1)(C); 8 U.S.C. § 1227(a)(2)(i).
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We lack jurisdiction to review Pizano’s contention that his statute of
conviction lacks an interstate commerce element, and therefore is not a CIMT,
because he failed to raise it before the BIA. See Tijani v. Holder, 628 F.3d 1071,
1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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