Silvia Rios-Sanabia v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA RIOS-SANABIA, No. 19-70172
Petitioner, Agency No. A095-707-551
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
Silvia Rios-Sanabia, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s decision denying her application for cancellation of removal.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
law. Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir. 2005). We deny the
petition for review.
The BIA did not err in concluding that Rios-Sanabia is statutorily ineligible
for cancellation of removal based on her 2006 conviction under California Penal
Code (“CPC”) 470b. See 8 U.S.C. §§ 1227(a)(2)(A)(i) (setting out the
requirements for a crime involving moral turpitude to constitute a deportable
offense); 1229b(b)(1)(C) (listing convictions that limit eligibility for cancellation
of removal). Rios-Sanabia’s contention that her conviction is no longer
disqualifying for cancellation of removal purposes under an amendment to CPC §
18.5 is foreclosed by Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1089 (9th Cir.
2021) (holding that “California’s amendment to § 18.5 of the [CPC], which
retroactively reduces the maximum misdemeanor sentence to 364 days for
purposes of state law, cannot be applied retroactively for purposes of
§ 1227(a)(2)(A)(i).”). Thus, Rios-Sanabia’s cancellation of removal claim fails.
To the extent that Rios-Sanabia raises for the first time in her opening brief
an ineffective assistance of counsel claim, we lack jurisdiction to consider it. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented to the agency); see also Puga v. Chertoff, 488 F.3d
812, 815-16 (9th Cir. 2007) (indicating that ineffective assistance of counsel claims
must be raised in a motion to reopen before the BIA).
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The stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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