Carlos Mares-Sanchez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS AUGUSTO MARES-SANCHEZ, No. 19-72257
Petitioner, Agency No. A207-181-395
v.
MEMORANDUM*
MERRICK B. GARLAND,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 12, 2021**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and McSHANE,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
Carlos Augusto Mares-Sanchez, a citizen of Mexico, petitions for review of
the decision of the Board of Immigration Appeals dismissing his appeal from the
Immigration Judge’s decision denying relief from cancellation of removal. We
have jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition.
The BIA’s factual findings and adverse credibility determinations are
reviewed for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010). Questions of law are reviewed de novo. Vitug v. Holder, 723 F.3d
1056, 1062 (9th Cir. 2013).
First, the finding that Mares-Sanchez was not “admitted” to the United
States was supported by substantial evidence. Mares-Sanchez conceded that he was
not admitted during the pleading stage of the proceedings. He later presented
testimonial evidence that he was waved through a port of entry when he entered
the United States in 2004, which would suffice to be an “admission” under In re
Quilantan, 25 I. & N. Dec. 285, 290 (BIA 2010), for purposes of adjustment of
status. The IJ did not credit this evidence, however, and the BIA affirmed the
adverse credibility determination. “When, like here, the BIA issues its own
decision but adopts particular parts of the IJ’s reasoning, we review both decisions.
. . . In conducting our review, we examine the reasons explicitly identified by the
BIA and the reasoning articulated in the IJ’s oral decision in support of those
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reasons.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020) (quotation marks and
citations omitted). The BIA described the IJ’s credibility analysis as “thorough”
and “well-reasoned,” and the BIA noted that, “[a]s the [IJ] found,” the testimony
describing Mares-Sanchez’s alleged Quinlantan entry was “implausible, and
insufficiently supported by independent corroborating evidence.”
“[O]nly the most extraordinary circumstances will justify overturning an
adverse credibility determination.” Jin v. Holder, 748 F.3d 959, 964 (9th Cir.
2014) (quoting Shrestha, 590 F.3d at 1041). No such circumstances are present
here. The agency offered “specific and cogent reasons” in support of its adverse
credibility determination, including the implausibility of Mares-Sanchez’s account
as well as a lack of objective corroborating evidence. Iman, 972 F.3d at 1064.
Second, the agency correctly concluded that Mares-Sanchez is statutorily
ineligible for cancellation of removal based on his conviction of a crime involving
moral turpitude (“CIMT”). The Attorney General may cancel removal if the
applicant proves that the four conditions set forth in 8 U.S.C. § 1229b(b)(1) are
met. See 8 U.S.C. § 1229a(c)(4)(A) (placing the burden of proof on applicant for
relief from removal). The agency held that Mares-Sanchez failed to prove, inter
alia, that “[the applicant] has not been convicted of [one of several enumerated
offenses, including a CIMT.]” 8 U.S.C. § 1229b(b)(1)(C).
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The agency rightly concluded that possession of child pornography under
California Penal Code § 311.11(a) is categorically a CIMT.
“The determination whether a conviction under a criminal statute is
categorically a crime of moral turpitude involves two steps . . . .”
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013)
(internal quotation marks and brackets omitted). “The first step is to
identify the elements of the statute of conviction.” Id. Because the
BIA lacks expertise in identifying the elements of state statutes, we
review the first step de novo. Id. “The second step is to compare the
elements of the statute of conviction to the generic definition of a
crime of moral turpitude and decide whether the conviction meets that
definition.” Id. Because the BIA has expertise in that task, we defer to
its conclusion if warranted, following the Chevron framework if the
decision is published or directly controlled by a published decision,
and otherwise following the Skidmore framework. Id.Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc).
Mares-Sanchez was convicted under California Penal Code § 311.11(a),
which provides:
Every person who knowingly possesses or controls any matter . . . the
production of which involves the use of a person under 18 years of
age, knowing that the matter depicts a person under 18 years of age
personally engaging in or simulating sexual conduct, as defined in
subdivision (d) of Section 311.4, is guilty of a felony. . . .
Section 311.4(d)(1) in turn defines “sexual conduct”:
“[S]exual conduct” means any of the following, whether actual or
simulated: sexual intercourse, oral copulation, anal intercourse, anal
oral copulation, masturbation, bestiality, sexual sadism, sexual
masochism, penetration of the vagina or rectum by any object in a
lewd or lascivious manner, exhibition of the genitals or pubic or rectal
area for the purpose of sexual stimulation of the viewer, any lewd or
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lascivious sexual act . . ., or excretory functions performed in a lewd
or lascivious manner . . . .
“Although the INA does not define ‘[CIMT],’ courts and the BIA have
generally defined this term as comprising crimes that are ‘inherently base, vile, or
depraved, and contrary to the accepted rules of morality and the duties owed
between persons or to society in general.’” Robles-Urrea v. Holder, 678 F.3d 702,
708 (9th Cir. 2012) (citation omitted). In United States v. Santacruz, 563 F.3d 894(9th Cir. 2009) (per curiam), we held the federal statute criminalizing knowing
possession of child pornography was a CIMT. Id. at 897. “Because possession of
child pornography offends conventional morality and visits continuing injury on
children, it is ‘vile, base or depraved and . . . violates societal moral standards.’”
Id. (ellipsis in original) (quoting Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1074
(9th Cir. 2007) (en banc)). Santacruz also addressed whether a “knowing” scienter
reached the level of culpability required for a CIMT, concluding it did. Id.(“Willful, evil intent need not be explicit in the statute if, as here, such intent is
implicit in the nature of the crime.” (quotation marks and citation omitted)). In
addition to Santacruz, the agency here relied on In re Olquin-Rufino, 23 I. & N.
Dec. 896 (BIA 2006), in which the BIA held Florida’s possession of child
pornography statute, which prohibited “knowingly possess[ing]” any image that
the possessor “knows to include any sexual conduct by a child,” to be a CIMT. Id.5
at 896–97 (quotation marks and citation omitted). Per the BIA, “[s]exual
exploitation of children is a particularly pernicious evil,” and child pornography “is
intrinsically related to the sexual abuse of children.” Id. at 897.
The conduct to which California Penal Code § 311.11(a) likely would be
applied does not meaningfully differ from the knowing possession of child
pornography prohibited by the statutes considered in Santacruz and Olquin-Rufino.
Mares-Sanchez attempts to distinguish those cases insofar as the broad definition
of “sexual conduct” in California criminalizes more, and less serious, conduct than
under federal or Florida law. While California’s definition of “sexual conduct” is,
in fact, broader than that of the federal statute, see Chavez-Solis v. Lynch, 803 F.3d
1004, 1008 (9th Cir. 2015), Mares-Sanchez has failed to demonstrate a “realistic
probability . . . that the State would apply its statute to conduct” that is not morally
turpitudinous, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Thus,
possession of child pornography prosecuted under California Penal Code
§ 311.11(a) “offends conventional morality and visits continuing injury on
children,” and it is categorically a CIMT. Santacruz, 563 F.3d at 897. Mares-
Sanchez’s conviction for possession of child pornography therefore renders him
statutorily ineligible for removal. 8 U.S.C. § 1229b(b)(1)(C).
PETITION FOR REVIEW DENIED.
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