Maria Padernal-Nye v. Eric H. Holder Jr. , 442 F. App'x 273 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIA LITA PADERNAL-NYE, No. 08-72076
Petitioner,
Agency No. A072 515 064
v.
ERIC H. HOLDER, JR., MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2011
San Francisco, California
Before: O’SCANNLAIN, and BYBEE, Circuit Judges, and HAYES,** District
Judge.
Petitioner appeals from the decision of the Board of Immigration Appeals
(“the Board”) ordering her removal to the Republic of the Philippines. The Board
adopted the decision of the Immigration Judge finding Petitioner removable under
section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act (“the Act”) on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
the grounds that her 1996 conviction under section 200.508 of the Nevada Revised
Statutes for child abuse and neglect was a “crime of violence” and, therefore, an
“aggravated felony.” The Board further concluded that Petitioner was removable
under section 237(a)(2)(A)(i) of the Act on the grounds that her 1996 child abuse
conviction was “a crime involving moral turpitude.”
Using the modified categorical analysis,1 the Court “may look beyond the
language of the statute to a narrow, specified set of documents that are part of the
record of conviction, including ‘the indictment, the judgment of conviction, jury
instructions, a signed guilty plea, or the transcript from the plea proceedings.’”
Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (quoting United States v.
Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)). Petitioner admitted
as a factual basis in her signed plea agreement2 underlying the 1996 conviction for
child abuse that she was a person responsible for the care, custody and control of a
child 10 years of age; and that she willfully, unlawfully, and knowingly caused the
1
See United States v. Contreras-Salas, 387 F.3d 1095, 1097 (9th Cir. 2004).
2
At oral argument, Petitioner asserted without reference to any portion of the
record that the signed plea agreement was repudiated in the plea colloquy. Petitioner
did not raise the argument at any stage in the administrative proceedings, or at any
stage in the briefing presented in this Court. Accordingly, this argument has been
waived. See Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008); see also 8 U.S.C. §
1252(d)(1).
2
child to suffer unjustifiable physical pain, or mental suffering, by kicking and
pulling on the child and by holding a knife to his throat. The Board properly
concluded that Petitioner’s 1996 conviction for child abuse was a crime of violence
as defined by 18 U.S.C. § 16(a) and a crime of moral turpitude which rendered the
Petitioner statutorily ineligible for voluntary departure and subject to removal. 8
U.S.C. § 1227(a)(2)(A)(i), (iii).
PETITION DENIED.
3