Salvador Perez-Guzman v. Eric Holder, Jr. , 534 F. App'x 657 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR PEREZ-GUZMAN, No. 11-73731
Petitioner, Agency No. A047-721-744
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2013**
Pasadena, California
Before: BENAVIDES,*** BYBEE, and NGUYEN, Circuit Judges.
Salvador Perez-Guzman (“Perez-Guzman”) petitions for review of the final
order of removal entered against him by the Board of Immigration Appeals
*
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).
***
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
(“BIA”). The BIA held that Perez-Guzman is statutorily ineligible for cancellation
of removal because he cannot establish that he has resided in the United States
continuously for 7 years after having been admitted to the United States. See 8
U.S.C. § 1229b(a)(2). This is because his prior controlled substance conviction
triggered the “stop-time” rule. Id. § 1229b(d)(1)(B). The “stop-time” rule
provides that an alien’s commission of certain offenses, which include controlled
substance offenses, stops the clock on an alien’s continuous residence. Id.
Perez-Guzman contends that the BIA erred by ruling that his prior
conviction for being under the influence of methamphetamine rendered him
statutorily ineligible for cancellation of removal under the “stop-time” rule because
his prior conviction is not an aggravated felony. This argument is predicated on
the faulty premise that the BIA found that he was ineligible for cancellation of
removal because it found that his prior conviction was an aggravated felony.
Instead, the BIA held that he was ineligible for cancellation of removal because his
commission of a controlled substance offense triggered the “stop-time” rule.
The “stop-time” rule set forth in 8 U.S.C. § 1229b(d)(1)(B) provides that
“any period of continuous residence or continuous physical presence in the United
States shall be deemed to end . . . when the alien has committed an offense referred
to in section 1182(a)(2) of this title that renders the alien inadmissible to the United
2
States under section 1182(a)(2) of this title or removable from the United States
under section 1227(a)(2) . . . .” E.g., Castillo-Cruz v. Holder, 581 F.3d 1154, 1162
(9th Cir. 2009). We have expressly rejected the contention that a conviction for
being under the influence of methamphetamine, a controlled substance, does not
render an alien deportable. Flores-Arellano v. INS, 5 F.3d 360, 362-63 (9th Cir.
1993). It is undisputed that Perez-Guzman has a conviction for being under the
influence of methamphetamine. Accordingly, under our precedent,
Perez-Guzman’s conviction renders him deportable under 8 U.S.C. § 1227(a)(2)(B)
and inadmissible under § 1182(a)(2)(A)(i)(II). Thus, his commission of the
offense triggered the “stop-time” rule in May 2007. Because Perez-Guzman’s
continuous residency ended prior to September 25, 2007, he failed to achieve the
required 7 years, rendering him ineligible for cancellation of removal. 8 U.S.C. §
1229b(a)(2). The BIA correctly held that he was ineligible for cancellation of
removal.
Perez-Guzman also contends that he received ineffective assistance of
counsel in his underlying criminal case. The Government correctly asserts that
because Perez-Guzman failed to exhaust this claim before the BIA, we are barred
from reaching the merits because we lack subject matter jurisdiction. Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). Thus, we are barred from
3
considering the merits of Perez-Guzman’s ineffective assistance of counsel claim.
Regardless, even if Perez-Guzman had exhausted this claim, we have held that a
criminal “conviction cannot be collaterally attacked in a deportation proceeding.”
Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir. 1993). Therefore,
Perez-Guzman is precluded from raising a claim of ineffective assistance of
counsel in a collateral attack on his criminal conviction, even if he had exhausted
this claim before the BIA.
PETITION DENIED.
4