Jose Perez Morales v. Jefferson Sessions, III ( 2018 )

FILED
NOT FOR PUBLICATION
OCT 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL PEREZ MORALES, No. 15-71697
Petitioner, Agency No. A047-345-446
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 16, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and LASNIK,***
District Judge.
Petitioner Jose Manuel Perez Morales is a native and citizen of Mexico. He
was admitted to the United States as a lawful permanent resident but, thereafter,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
pleaded guilty to (1) encouraging or inducing an alien to come to, enter, or reside
in the United States, and (2) aiding or abetting, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv) and (v)(II). The Board of Immigration Appeals ruled that
Petitioner is removable, as charged, under 8 U.S.C. § 1227(a)(2)(A)(iii), because
he stands convicted of an aggravated felony. We dismiss the petition seeking
review of that decision.
We lack jurisdiction over a petition for review from a final order of removal
against a non-citizen who is removable for having committed an aggravated felony.
8 U.S.C. § 1252(a)(2)(C). But we have jurisdiction to examine our jurisdiction,
including the question, which we review de novo, whether a particular offense is
an aggravated felony that strips us of jurisdiction. Murillo-Prado v. Holder, 735
F.3d 1152, 1155–56 (9th Cir. 2013).
The relevant statute categorically labels Petitioner’s crimes of conviction
aggravated felonies:
The term "aggravated felony" means–
....
(N) an offense described in paragraph (1)(A) or (2) of section
1324(a) of this title (relating to alien smuggling) . . . .
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8 U.S.C. § 1101(a)(43)(N). That subsection also provides an exception that is not
relevant here. Petitioner’s argument that the descriptive parenthetical phrase
renders the definition overbroad is unavailing. Congress clearly expressed that,
with one inapplicable exception, all offenses defined in 8 U.S.C.
§ 1324(a)(1)(A)—which includes both of Petitioner’s convictions—are aggravated
felonies. Indeed, we rejected Petitioner’s arguments expressly in Castro-Espinosa
v. Ashcroft, 257 F.3d 1130, 1131–32 (9th Cir. 2001) (order) (internal quotation
marks omitted): "[U]nder a straightforward reading of section 1101(a)(43)(N), the
parenthetical merely describes and does not limit" the specified predicate offenses
that are "included in section 1324(a)(1)(A)." See also United States v. Guzman-
Mata, 579 F.3d 1065, 1068 (9th Cir. 2009) ("We hold that a conviction under 8
U.S.C. § 1324(a)(1) is categorically an "alien smuggling offense" under U.S.S.G.
§ 2L1.2(b)(1)(A).") .
Petition DISMISSED.
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