Borislav Zaprianov v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2020
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
BORISLAV NIKOLOV ZAPRIANOV, No. 16-72930
Petitioner, Agency No. A046-320-206
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 15, 2019
Pasadena, California
Before: WARDLAW and COLLINS, Circuit Judges, and SETTLE,** District Judge.
Borislav Zaprianov petitions for review of the Board of Immigration
Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his
request for a continuance of the proceeding and his application for cancellation of
removal. We have jurisdiction under section 242 of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1252. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for the Western
District of Washington, sitting by designation.
Zaprianov is a native and citizen of Bulgaria. In March 2000, Zaprianov
pleaded guilty in Arizona state court to solicitation to commit fraudulent schemes
and artifices, “committed on or between 8/12/94 and 8/17/94,” in violation of
Arizona Revised Statutes §§ 13-1002 and 13-2310. He was sentenced to three
years of probation and was ordered to pay $10,127.56 in restitution. In March
2003, Zaprianov was convicted in California state court of corporal injury to a
spouse/cohabitant, in violation of California Penal Code § 273.5. In July 2008, the
Government commenced removal proceedings against Zaprianov based on his
conviction for domestic violence. In response, Zaprianov sought cancellation of
removal, which the Government opposed arguing that Zaprianov’s Arizona
conviction constituted an “aggravated felony” that rendered him ineligible for
cancellation.
During the proceedings, the IJ granted Zaprianov multiple continuances to
research or resolve issues relating to the Arizona conviction. In March 2014,
Zaprianov filed an application in Arizona state court to vacate his conviction
pursuant to Arizona Revised Statutes §§ 13-905–13-912. Two months later, the IJ
denied Zaprianov’s request for an additional continuance pending resolution of
Zaprianov’s application in Arizona state court. The IJ then concluded that
Zaprianov’s prior conviction was for an “aggravated felony,” denied his
application for cancellation of removal, and ordered him removed. Shortly
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thereafter, the Arizona court granted Zaprianov’s application to vacate his
conviction. Zaprianov appealed to the BIA, which affirmed the IJ’s decision and
dismissed the appeal.
1. The BIA did not err in affirming the IJ’s decision to deny an additional
continuance. Zaprianov’s application in Arizona state court invoked Arizona
Revised Statutes §§ 13-905–13-912, which authorized the sentencing court to grant
relief “on fulfillment of the conditions of probation or sentence and discharge by
the court.” ARIZ. REV. STAT. § 13-907(A) (2014) (later renumbered as § 13-905).
In Poblete Mendoza v. Holder, we held that vacatur under § 13-907 “was for
rehabilitative purposes and therefore, the government could use this conviction in
[a] subsequent removal proceeding.” 606 F.3d 1137, 1142 (9th Cir. 2010). Thus,
because the outcome of the state court application was irrelevant for immigration
purposes, the IJ did not abuse his discretion in denying Zaprianov’s request for a
continuance.
2. The BIA did not err in concluding that Zaprianov’s Arizona conviction
was an “aggravated felony” because it was an offense “[1] involv[ing] fraud or
deceit [2] in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C.
§ 1101(a)(43)(M)(i).
a. In determining whether a conviction “involves fraud or deceit,” we apply
a “categorical approach,” under which “we look not to the facts of the particular
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prior case, but instead to whether the state statute defining the crime of conviction
categorically fits within the generic federal definition of a corresponding
aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citations and
internal quotation marks omitted). That is, “a state offense is a categorical match
with a generic federal offense only if a conviction of the state offense necessarily
involved facts equating to the generic federal offense.” Id. (citation, internal
quotation marks, and alteration marks omitted).
Here, Zaprianov was convicted of solicitation to commit fraudulent schemes
and artifices in violation of Arizona Revised Statutes §§ 13-1002 and 13-2310.
Section 13-1002 provides that a person “commits solicitation if, with the intent to
promote or facilitate the commission of a felony or misdemeanor, such person
commands, encourages, requests or solicits another person to engage in specific
conduct which would constitute the felony or misdemeanor.” ARIZ. REV. STAT.
§ 13-1002(A). Zaprianov solicited a crime in violation of § 13-2310, which
punishes “[a]ny person who, pursuant to a scheme or artifice to defraud, knowingly
obtains any benefit by means of false or fraudulent pretenses, representations,
promises or material omissions.” ARIZ. REV. STAT. § 13-2310(A). “Because the
crime of solicitation does not exist without incorporating other laws, solicitation is
a law whose character or type depends wholly on the underlying substantive
offense.” Murro v. Ariz. Dep’t of Health Servs., 442 P.3d 834, 836 (Ariz. Ct. App.
4
2019); see also Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007)
(crime of solicitation under Arizona law requires consideration of the “underlying
crimes” solicited). Thus, solicitation to violate Arizona Revised Statute § 13-2310
necessarily involves both “a scheme or artifice to defraud” and “false or fraudulent
pretenses, representations, promises or material omissions.” ARIZ. REV. STAT. §
13-2310(A). To convict Zaprianov, Arizona was required to prove that he
“command[ed], encourage[d], request[d] or solicit[ed] another person to engage in
specific conduct which would constitute” that felony. ARIZ. REV. STAT. § 13-
1002(A). The crime, therefore, “necessarily entail[ed] fraudulent or deceitful
conduct” and is an “aggravated felony.” Moncrieffe, 569 U.S. at 190; see also
Kawashima v. Holder, 565 U.S. 478, 484 (2012) (“We conclude that Mrs.
Kawashima’s conviction establishes that, by knowingly and willfully assisting her
husband’s filing of a materially false tax return, Mrs. Kawashima also committed a
felony that involved ‘deceit.’”).1
1
Zaprianov’s reliance upon Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir.
1997), and Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999), is unavailing
because the statutes addressed in those cases specifically listed the inchoate crimes
of attempt and conspiracy. Here, the applicable definition of “aggravated felony”
contains no such comparable language excluding solicitation offenses. 8 U.S.C.
§ 1101(a)(43)(M)(i). Similarly, we have rejected Zaprianov’s other argument that
the language of subsection (U) somehow “exclude[s] solicitation from the
definition of an aggravated felony under the subsections that come before,
§ 1101(a)(43)(A)-(T).” Prakash v. Holder, 579 F.3d 1033, 1038 (9th Cir. 2009).
Zaprianov’s conviction qualifies as an aggravated felony under one such
subsection—subsection (M)(i)—and “[o]ne is enough.” Id. at 1039.
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b. Zaprianov’s Arizona conviction also involved “loss to the victim or
victims exceed[ing] $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). Under Nijhawan v.
Holder, this clause of the statute is not subject to the categorical approach. 557
U.S. 29, 41 (2009). Here, the judgment in Zaprianov’s case ordered him to pay
“restitution” of $10,127.56 for “economic loss of the victim(s).” “In the absence
of any conflicting evidence,” this determination in the “restitution order” provides
sufficient clear and convincing evidence that Zaprianov caused more than $10,000
of loss. See id. at 42–43.
PETITION DENIED.
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