Jorge Burgos-Gomez v. Eric H. Holder Jr. , 393 F. App'x 441 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALFREDO BURGOS-GOMEZ, No. 08-72170
aka Medardo Villanueva-Castellanos,
B.I.A. No. A098-182-258
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 11, 2010
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Petitioner Jorge Alfredo Burgos-Gomez, a native and citizen of Honduras,
appeals the Board of Immigration Appeals’ ("BIA") dismissal of the immigration
judge’s ("IJ") removal order. The BIA found that Petitioner was deportable as
charged, inadmissible because of his conviction for a crime involving moral
turpitude, and ineligible for any waiver that would permit him to qualify for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
adjustment of status. The BIA also affirmed the denial of Petitioner’s application
for adjustment of status on the ground that he failed to demonstrate the requisite
degree of hardship to his United States citizen mother and son. We review final
decisions of the BIA, Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001), but
we lack jurisdiction to review discretionary decisions, Murillo-Salmeron v. INS,
327 F.3d 898, 901 (9th Cir. 2003). We grant the petition in part, dismiss in part,
and remand to the BIA.
The BIA erred in its analysis regarding whether Petitioner’s conviction for
conspiracy to commit battery, in violation of sections 199.480 and 200.481 of the
Nevada Revised Statutes, constitutes a crime of moral turpitude. The BIA
improperly held that Petitioner’s conviction constituted a crime of moral turpitude
without conducting the required analysis under the most recent applicable
precedents. Specifically, the BIA’s analysis is incomplete because it failed to take
account of the categorical approach set forth by the Supreme Court in Taylor v.
United States, 495 U.S. 575 (1990). The BIA did not analyze the specific elements
of the Nevada crime. See Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010)
(holding that, in determining whether a conviction under a criminal statute is
categorically a crime of moral turpitude, the BIA first must identify the elements of
the criminal statute and then must compare those elements to the generic definition
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of a crime involving moral turpitude and decide whether they meet the definition).
And, a fortiori, the BIA did not undertake to decide whether, if the Nevada statute
does not qualify categorically, the modified categorical approach applies. See
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 (2007) (noting that some courts
refer to this step of the Taylor inquiry as the "modified categorical approach").
The BIA also failed to use the form of analysis set forth in its own opinion in In re
Short, 20 I. & N. Dec. 136, 137-38 (B.I.A. 1989).
We are not authorized to conduct any of that analysis for the BIA, INS v.
Orlando Ventura, 537 U.S. 12 (2002) (per curiam), so we must remand for it to do
so in the first instance.
We lack jurisdiction to review the BIA’s discretionary decision to deny
Petitioner a waiver of inadmissibility under section 212(h) of the Immigration and
Nationality Act. Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir. 2007).
GRANTED in part; DISMISSED in part; and REMANDED. Costs on
appeal awarded to Petitioner.
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