Henriquez v. Holder , 474 F. App'x 550 ( 2012 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                               JUL 05 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    WILFREDO A. HENRIQUEZ,                          No. 08-70255
    Petitioner,                        Agency No. A092-292-426
    v.
    ORDER*
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted May 11, 2012
    Pasadena, California
    Before: PREGERSON and GRABER, Circuit Judges, and CHEN,** District Judge.
    Wilfredo A. Henriquez’s petition for review of his final order of removal is
    DISMISSED in part and DENIED in part.
    *
    This order is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Edward M. Chen, United States District Judge for the
    Northern District of California, sitting by designation.
    First, this court lacks jurisdiction to consider Henriquez’s claim that he was
    deprived of his right to counsel at his hearing before an immigration judge (“IJ”).
    Henriquez failed to raise his right to counsel argument to the Board of Immigration
    Appeals in his motion for reconsideration. Thus, he fails to satisfy the exhaustion
    requirement of 
    8 U.S.C. § 1252
    (d)(1). See Segura v. Holder, 
    605 F.3d 1063
    , 1066
    (9th Cir. 2010) (“We can exercise jurisdiction over a claim only if the alien has
    exhausted all administrative remedies available to the alien as of right.” (internal
    quotation marks omitted)).
    Second, Henriquez’s remaining contentions, that the government has failed
    to provide sufficient evidence to prove his removability and that his conviction
    under California Penal Code § 470(d) does not constitute an aggravated felony,
    both fail. At his “pleading stage” before the IJ, Henriquez admitted that he had
    been: (1) convicted of possession of methamphetamine, a violation of California
    Health & Safety Code § 11377(a); (2) convicted of forgery, a violation of
    California Penal Code § 470(d); and (3) sentenced to sixteen months’ confinement.
    We are bound by these admissions. See Perez-Mejia v. Holder, 
    663 F.3d 403
    , 410-
    11 (9th Cir. 2011). Furthermore, Henriquez’s conviction under California Penal
    Code § 470(d) qualifies as an aggravated felony under the categorical approach.
    See Albillo-Figueroa v. INS, 
    221 F.3d 1070
    , 1073 (9th Cir. 2000) (“Th[e] requisite
    knowledge and intent to defraud is sufficient to make [the] conviction . . . one that
    is ‘related to’ the act of counterfeiting itself.”).1
    Accordingly, Henriquez’s petition for review of his final order of removal is
    DISMISSED in part and DENIED in part.
    1
    The government’s contention that this court lacks jurisdiction to consider
    this argument is without merit. Henriquez adequately raised this argument in his
    motion for reconsideration before the BIA. See Vizcarra-Ayala v. Mukasey, 
    514 F.3d 870
    , 873 (9th Cir. 2008) (a petitioner may properly exhaust his remedies even
    where he “did not make the precise statutory argument in the proceedings below
    [but] . . . did raise [the] general argument.” (internal quotation marks omitted; last
    alteration added)).
    

Document Info

Docket Number: 08-70255

Citation Numbers: 474 F. App'x 550

Judges: Pregerson, Graber, Chen

Filed Date: 7/5/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024