Jorge Romero-Mendez v. Eric Holder, Jr. , 564 F. App'x 884 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JORGE ALEJANDRO ROMERO- No. 11-71793
MENDEZ, a.k.a. Jorge Alejandro Romero,
Agency No. A077-103-812
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2014**
Pasadena, California
Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.
Jorge Alejandro Romero-Mendez (“Romero-Mendez”) petitions for review
of a decision of the Board of Immigration Appeals (“BIA”) finding him removable
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony
after admission to the United States. We deny in part and dismiss in part.
1. The BIA correctly found Romero-Mendez removable based on his
conviction under California Penal Code Section 273.5(a) and the two-year state
prison sentence he received following violation of probation. The former qualifies
categorically as a “crime of violence” under 18 U.S.C. § 16(a). See Banuelos-Ayon
v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010). The latter constitutes a “term of
imprisonment [of] at least one year” under 8 U.S.C. § 1101(a)(48)(B).1 Because
we find this conclusion clear based on the current administrative record, we deny
Romero-Mendez’s motion to supplement the administrative record.
We also reject Romero-Mendez’s contention that the two-year state prison
sentence he received was imposed as punishment for his violation of probation,
and not for his conviction under Section 273.5(a). The record shows that Romero-
Mendez admitted that he violated the terms of his probation, had his prior
probationary sentence vacated, and received a two-year state prison sentence for
his conviction under Section 273.5(a)—something clearly permitted under
1
Romero-Mendez’s suggestion that the sentencing court did not suspend the
imposition of sentence when granting him probation is wrong as a matter of
California law. See Cal. Penal Code § 1203(a).
2
California Penal Code Section 1203.1(j). See also Cal. Penal Code § 273.5(a)
(permitting punishment by imprisonment in state prison for up to four years).
Because Romero-Mendez is removable based on his conviction under
Section 273.5(a) and his two-year state prison sentence, we lack jurisdiction over
his petition and dismiss the petition in part. See Prakash v. Holder, 579 F.3d 1033,
1039 (9th Cir. 2009).
2. Romero-Mendez cannot establish a viable claim of ineffective
assistance of counsel. In order to succeed on a claim of ineffective assistance of
counsel during removal proceedings, a petitioner must demonstrate prejudice. Ray
v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006). “[W]here counsel’s performance
was inadequate but the petitioner still had an opportunity to present his claim,
‘[p]rejudice is found when the performance of counsel was so inadequate that it
may have affected the outcome of the proceedings.’” Id. (quoting Ortiz v. INS, 179
F.3d 1148, 1153 (9th Cir. 1999)) (second alteration in original). This is a hurdle
Romero-Mendez cannot surmount because, as noted above, the record establishes
his removability on the basis of his conviction under California Penal Code Section
273.5(a) and the two-year state prison sentence he received. Thus, we deny
Romero-Mendez’s petition in part.
3
3. Romero-Mendez’s argument that 8 U.S.C. § 1227(a)(2)(A)(iii), as
applied in his case, is unconstitutionally broad lacks merit. As a preliminary
matter, Romero-Mendez fails to identify any portion of the Federal Constitution
that the statute purportedly violates. Moreover, his assertion that Congress
intended removability under 8 U.S.C. § 1227(a)(2)(A)(iii) to be limited to “the
most egregious offenses” is contradicted by the plain language of the statute and
the various definitions it incorporates. See 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C. §
1227(a)(2)(A)(iii); 18 U.S.C. § 16(a). We therefore deny Romero-Mendez’s
petition in part.
DISMISSED in part and DENIED in part.
4
FILED
Romero-Mendez v. Holder, No. 11-71793 MAR 19 2014
MOLLY C. DWYER, CLERK
Circuit Judge NGUYEN, concurring in part and concurring in the judgment: COURT OF APPEALS
U.S.
For the reasons offered in my concurrence in Perez Ramirez v. Holder, No.
10-71198, 2014 WL 961883 (9th Cir. Mar. 13, 2014), as to Part 1 of the
memorandum disposition, I concur only in the judgment.