Jim Rodriguez v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 28 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIM EDUARDO RODRIGUEZ, AKA No. 17-73039
Eduardo Rodriguez
Agency No. A075-610-739
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2021
San Francisco, California
Before: MURGUIA, Chief Judge, and IKUTA and VANDYKE, Circuit Judges.
Petitioner Jim Eduardo Rodriguez seeks review of a decision of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ)
denying his application for adjustment of status under 8 U.S.C. § 1255(i) and a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
waiver of inadmissibility under 8 U.S.C. § 1182(h). We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition for review.
The BIA did not err in concluding that Rodriguez is inadmissible as an alien
convicted of a crime involving moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(i),
due to his conviction under section 245(a)(2) of the California Penal Code (which
criminalizes “assault upon the person of another with a firearm”). The BIA
previously determined that section 245(a)(1) of the California Penal Code (which
criminalizes “assault upon the person of another with a deadly weapon or
instrument other than a firearm”) is categorically a crime involving moral
turpitude, see Matter of Wu, 27 I. & N. Dec. 8, 9 (BIA 2017), and we have deferred
to that conclusion, see Safaryan v. Barr, 975 F.3d 976, 988 (9th Cir. 2020).
Because there is no material difference, for purposes of the categorical approach,
between section 245(a)(1) and section 245(a)(2) of the California Penal Code, the
BIA did not err in holding that section 245(a)(2) of the California Penal Code is
also categorically a crime involving moral turpitude.
The BIA did not err in concluding that Rodriguez was not entitled to a
waiver of inadmissibility because his prior conviction constituted a “violent or
dangerous” crime, and because he failed to show that denial of his application
would “result in exceptional and extremely unusual hardship.” 8 C.F.R.
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§ 1212.7(d). At oral argument in this appeal, counsel for Rodriguez conceded
Rodriguez’s argument that the heightened standard for “violent or dangerous
crimes” in § 1212.7(d) is unconstitutionally vague. And Rodriguez forfeited the
argument that the BIA erred by not assessing whether Rodriguez’s actual conduct
was violent or dangerous because counsel raised that argument for the first time in
a submission of supplemental authority under Rule 28(j) of the Federal Rules of
Appellate Procedure. See United States v. Gomez–Mendez, 486 F.3d 599, 606 n.
10 (9th Cir. 2007) (“[A]n issue raised for the first time in a letter of supplemental
authorities under Fed. R. App. 28(j) is ordinarily deemed waived.”).
PETITION DENIED.
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