Mota v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSTANTINA RAMIREZ MOTA, 
Petitioner, No. 07-71880
v.
 Agency No.
A79-540-706
MICHAEL B. MUKASEY, Attorney
General of the United States, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued August 11, 2008
Submitted September 17, 2008
San Francisco, California
Filed September 17, 2008
Before: David R. Thompson and Kim McLane Wardlaw,
Circuit Judges, and Barry T. Moskowitz,* District Judge.
Opinion by Judge Thompson
*The Honorable Barry T. Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
13137
13138 MOTA v. MUKASEY
COUNSEL
Eugenio Ramos, University of Santa Clara law student, super-
vised by Evangeline G. Abriel, supervising attorney, Santa
Clara, California, for the petitioner.
MOTA v. MUKASEY 13139
Paul Fiorino, Department of Justice, Washington, D.C., for
the respondent.
OPINION
THOMPSON, Senior Circuit Judge:
Constantina Ramirez Mota, a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming an immigration judge’s decision
that she is ineligible for cancellation of removal due to her
conviction for inflicting injury upon a child, in violation of
California Penal Code § 273d. The BIA held that Mota’s con-
viction qualified as a crime involving domestic violence. We
have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant
the petition for review.
I. Background
On or about February 27, 1985, at the age of twenty, Con-
stantina Ramirez Mota (“Mota”) entered the United States
illegally. The following year, she returned to Mexico briefly,
and then again entered the United States illegally, this time
with her two children. She has lived in the United States con-
tinuously ever since. She also has three children born in the
United States.
On November 16, 1989, Mota was charged with the misde-
meanor infliction of an injury upon a child in violation of sec-
tion 273d of the California Penal Code. On January 22, 1990,
she was convicted and sentenced to thirty days in jail, three
years probation, and completion of parenting classes.
On September 21, 2001, Mota was issued a Notice to
Appear in removal proceedings. On November 15, 2002,
through her attorney, she admitted the allegations in the
13140 MOTA v. MUKASEY
Notice to Appear and conceded being subject to removal as
charged. She also submitted an application for asylum, with-
holding of removal and CAT protection. She then withdrew
her application and instead requested Cancellation of
Removal for Certain Nonpermanent Resident aliens under
INA § 240B, 8 U.S.C. § 1229c.
On March 25, 2004, at the scheduled merits hearing, Mota,
represented by a new attorney, informed the immigration
judge that she was not prepared to proceed because she had
not filed her documents in immigration court. The Immigra-
tion Judge (“IJ”) gave Mota an off-the-record opportunity to
sign and make changes to her cancellation application, and
then continued the merits hearing. On the same day, the
Department of Homeland Security filed in immigration court
a document evidencing Mota’s 1990 conviction.
On June 24, 2005, Mota appeared pro se at her next sched-
uled merits hearing. She had fired her previous attorney. Mota
testified that her three children who had been born in the
United States on March 26, 1990, February 4, 1991, and July
5, 1992, would suffer “exceptional and extremely unusual
hardship” if she were removed to Mexico. When questioned
by the IJ, Mota admitted that she had been arrested in 1989,
and was convicted because she “hit” and “abuse[d] her chil-
dren.” She also testified that she was jailed for “[two] weeks”
and lost custody of her children for “about a year” while she
attended mandatory classes in parenting. Her Application for
Cancellation of Removal and Adjustment of Status for Certain
Nonpermanent Residents similarly indicates that she was
“convicted” in 1990 for “Child Abuse,” and that she “served
[fifteen] days” in jail. Mota was again granted a continuance
of her hearing.
On October 14, 2005, Mota appeared at her next scheduled
hearing with a new attorney who informed the IJ that he
would be requesting a continuance. The IJ stated that Mota’s
conviction documents established that she was statutorily
MOTA v. MUKASEY 13141
ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1)(C), because she was convicted in 1990 of “In-
flicting Injury Upon a Child,” a violation of California Penal
Code § 273d. The IJ concluded that this conviction rendered
her ineligible for cancellation relief under § 1227(a)(3)(E)(I),
because it was “a crime of child abuse.” The IJ then pretermit-
ted Mota’s claim for cancellation of removal under section
240(A)(b)(1)(c) of the INA, but granted her voluntary depar-
ture.
On November 11, 2005, Mota filed a timely Notice of
Appeal to the Board of Immigration Appeals (BIA). On April
20, 2007, the BIA dismissed her appeal. The BIA explained:
The respondent is ineligible for cancellation of
removal due to her conviction for a crime involving
domestic violence. The respondent states on appeal
that the offense for which she was convicted does
not impact her eligibility for cancellation of removal.
However, she has not contested the fact of convic-
tion. She cites no precedent for the proposition,
implied in her brief statement on the Notice of
Appeal, that a conviction under section 273d of the
California Penal Code is not a crime delineated in
section 240A(b)(1) of the Immigration and National-
ity Act, 8 U.S.C. § 1229b(b)(1)(outlining the statu-
tory requirements for cancellation of removal,
including the requirement that the alien not have
been convicted of certain offenses). Since the record
reflects that the respondent is an inadmissible alien
who was convicted of a crime of domestic violence,
we see no basis on which to sustain this appeal. See
Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th
Cir. 2004).
The BIA extended Mota’s period for voluntary departure.
Mota timely petitioned for review.
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II. Discussion
Pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction
to review constitutional claims and questions of law presented
in all petitions for review, including those brought by individ-
uals found removable based on certain enumerated crimes.
See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.
2004), as adopted by Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1124 (9th Cir. 2006) (en banc). We review de novo
questions of law. See, e.g., Rosales-Rosales v. Ashcroft, 347
F.3d 714, 717 (9th Cir. 2003) (whether offense constitutes an
aggravated felony). “The BIA’s interpretation of immigration
laws is entitled to deference. However, we are not obligated
to accept an interpretation clearly contrary to the plain and
sensible meaning of the statute.” Kankamalage v. INS, 335
F.3d 858, 861 (9th Cir. 2003) (citation omitted). Additionally,
we “will not defer to BIA decisions that conflict with circuit
precedent.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th
Cir. 2003).
To qualify for cancellation of removal, Mota must establish
that she:
(A) has been physically present in the United States
for a continuous period of not less than 10 years
immediately preceding the date of such application;
(B) has been a person of good moral character dur-
ing such period; (C) has not been convicted of an
offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title (except in a case described in
section 1227(a)(7) of this title where the Attorney
General exercises discretion to grant a waiver); and
(D) establishes that removal would result in excep-
tional and extremely unusual hardship to the alien’s
spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for per-
manent residence.
MOTA v. MUKASEY 13143
8 U.S.C. 1229b(b).
[1] The Illegal Immigration Reform and Responsibility Act
of 1996 (IIRIRA) brought into existence section 237(a)(2)(E)
of the Immigration Nationality Act, 8 U.S.C. § 1227(a)(2)(E).
The effective date of this statute is September 30, 1996. After
the agency’s decision in Mota’s proceedings, the BIA held
that a conviction of a crime of domestic violence before Sep-
tember 30, 1996, does not make a petitioner ineligible for can-
cellation of removal. Matter of Gonzales-Silva, 24 I & N Dec.
218, 220 (BIA 2007) (“[W]e conclude that an alien whose
conviction precedes the effective date for section 237(a)(2)(E)
of the Act has not been ‘convicted under’ section 237(a)(2) of
the Act. While this is a close question, we find that an offense
can be one ‘described’ in section 237(a)(2)(E) only if the con-
viction for that offense occurred after September 30, 1996.”);
see also Illegal Immigration Reform and Immigrant Responsi-
bility Act, Pub. L. No. 104-208, 350(b), 110 Stat. 3009, 3009-
640 (1996) (“The amendment [adding domestic violence as
grounds for deportation] shall apply to convictions . . . occur-
ring after the date of the enactment of the act.”). We agree
with the BIA’s holding in Matter of Gonzales-Silva that a
conviction prior to September 30, 1996, is not included within
section 237(a)(2)(E) of the Act.
[2] Because Mota’s conviction occurred on January 22,
1990, the BIA erred as a matter of law when it ruled that this
conviction made Mota ineligible for cancellation of removal.
We therefore grant the petition for review. We also grant the
parties’ request that we assign this case to our mediation unit
to give the parties the opportunity to resolve other aspects of
Mota’s cancellation claim. The mandate shall not issue until
ordered by this court following exhaustion of mediation pro-
ceedings.
PETITION FOR REVIEW GRANTED; ASSIGNED
TO MEDIATION; ISSUANCE OF MANDATE WITH-
HELD.