Flores Juarez v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS FLORES JUAREZ, 
Petitioner, No. 04-75717
v.
 Agency No.
A95-451-282
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2008*
Pasadena, California
Filed June 26, 2008
Before: Alex Kozinski, Chief Judge, Ruggero J. Aldisert**
and Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Ruggero J. Aldisert, Senior United States Circuit
Judge for the Third Circuit, sitting by designation.
7579
FLORES JUAREZ v. MUKASEY 7581
COUNSEL
Sung U. Park, Law Offices of Sung U. Park, Los Angeles,
California, for the petitioner.
Peter D. Keisler, Assistant Attorney General; John C. Cun-
ningham, Shelley R. Goad, Office of Immigration Litigation,
United States Department of Justice, Washington, D.C., for
the respondent.
OPINION
PER CURIAM:
Jose Luis Flores Juarez petitions for review of the Board of
Immigration Appeals’ order affirming the Immigration
Judge’s decision finding him removable and denying his
application for cancellation of removal. We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition.
Flores Juarez, a native and citizen of Mexico, entered the
United States in December 1988 without inspection or parole.
The government initiated removal proceedings on July 24,
2002. Flores Juarez conceded he was removable and applied
for cancellation of removal on June 16, 2003. The Immigra-
tion Judge (“IJ”) denied his application for cancellation of
removal, on the ground Flores Juarez was ineligible because
he had been convicted of a crime involving moral turpitude,
based on his prior convictions for petty theft.1
1
The BIA summarily affirmed the IJ’s decision without opinion; accord-
ingly, we review the IJ’s decision. See Lanza v. Ashcroft, 389 F.3d 917,
7582 FLORES JUAREZ v. MUKASEY
Under 8 U.S.C. § 1229b(b)(1), the Attorney General may
cancel removal of, and adjust to the status of lawfully admit-
ted, a removable alien if the alien:
(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 appli-
cation;
(B) has been a person of good moral character dur-
ing such period;
(C) has not been convicted of an offense under sec-
tion 1182(a)(2) [including crimes involving moral
turpitude], 1227(a)(2), or 1227(a)(3) of this title,
subject to paragraph (5); 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.
8 U.S.C. § 1229b(b)(1).
In 1989, Flores Juarez was convicted of three separate petty
theft offenses in violation of California Penal Code §§ 484
and 488. Petty theft is a crime involving moral turpitude
under 8 U.S.C. § 1182(a)(2)(A)(i)(I). United States v.
Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999).
Under 8 U.S.C. § 1229b(b)(1)(C), an alien is ineligible for
cancellation of removal if he has been convicted of certain
offenses, including a conviction of a crime involving moral
turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I).
925 (9th Cir. 2004). Flores Juarez’s petition raises a question of statutory
interpretation, which we review de novo. See Gonzalez-Gonzalez v. Ash-
croft, 390 F.3d 649, 651 (9th Cir. 2004).
FLORES JUAREZ v. MUKASEY 7583
Flores Juarez contends the IJ erred when he determined
Flores Juarez was ineligible for cancellation of removal under
8 U.S.C. § 1229b(b)(1)(C) based on his convictions of a crime
involving moral turpitude. According to the statutory reading
Flores Juarez proposes, his convictions do not render him
ineligible because they occurred before the start of a ten-year
time period during which he was required to have been of
good moral character to be eligible for cancellation of
removal. Flores Juarez’s contention contradicts the plain lan-
guage of the statute.
[1] The continuous physical presence and good moral char-
acter requirements for cancellation of removal contain a ten-
year time limit. See 8 U.S.C. § 1229b(b)(1)(A) (requiring con-
tinuous physical presence for a “period of not less than 10
years immediately preceding the date of such application”);
id. § 1229b(b)(1)(B) (requiring “good moral character during
such period”). In contrast, 8 U.S.C. § 1229b(b)(1)(C), which
makes aliens who have committed certain offenses (including
a crime involving moral turpitude) ineligible for cancellation
of removal, does not place any temporal limitation on when
the crime was committed.
[2] In other words, a person can be of good moral character
for ten years before his application for cancellation of
removal under 8 U.S.C. § 1229b(b)(1)(B), yet have commit-
ted a crime involving moral turpitude more than ten years ear-
lier, and therefore be ineligible for cancellation of removal.
Accordingly, the IJ did not err when he determined Flores
Juarez’s petty theft convictions rendered him ineligible for
cancellation of removal.
[3] Flores Juarez also claims the IJ violated his due process
rights to a fair hearing because he did not allow Flores Juarez
to present evidence that his removal would result in excep-
tional and extremely unusual hardship to his United States cit-
izen children. The claim fails because Flores Juarez was
statutorily ineligible for cancellation of removal. See Lata v.
7584 FLORES JUAREZ v. MUKASEY
INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding petitioner
must demonstrate error and substantial prejudice to prevail on
a due process claim).
PETITION DENIED.