Fernando Bernal-Bermudez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION DEC 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO BERNAL-BERMUDEZ, No. 13-72198
Petitioner, Agency No. A076-221-017
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Fernando Bernal-Bermudez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision finding him removable and denying his
application for adjustment of status in conjunction with a waiver of inadmissibility
*
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).
under Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). We
have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law.
Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). We deny in part and grant
in part the petition for review, and remand.
The agency correctly determined that Bernal-Bermudez’s conviction under
California Penal Code § 288(a), for attempting to commit a lewd and lascivious act
on a child less than 14 years of age, constitutes “sexual abuse of a minor,” an
aggravated felony under 8 U.S.C. § 1101(a)(43)(A) that renders him removable
under 8 U.S.C. § 1227(a)(2)(A)(iii). This court has “repeatedly held that California
Penal Code § 288(a) categorically involves ‘sexual abuse of a minor’ under 8
U.S.C. § 1101(a)(43)(A).” United States v. Farmer, 627 F.3d 416, 419-20 (9th
Cir. 2010) (citing United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.
1999); United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003)). To the
extent Bernal-Bermudez contends that this line of cases was wrongly decided, a
three judge panel cannot reconsider or overrule circuit precedent in the absence of
an intervening Supreme Court or en banc decision. See Avagyan v. Holder, 646
F.3d 672, 677 (9th Cir. 2011).
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At the time it decided this case, the BIA did not have the benefit of this
court’s decision in Negrete-Ramirez v. Holder, concluding that an adjustment of
status after entering the country does not constitute an “admission” under INA
§ 212(h). 741 F.3d 1047, 1054 (9th Cir. 2014). Accordingly, we remand for the
BIA to consider Bernal-Bermudez’s eligibility for a § 212(h) waiver in light of this
intervening law.
Each party shall bear its own costs for this petition for review.
PETITION DENIED in part; GRANTED in part; REMANDED.
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