Sherwin Rinton v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION JUN 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERWIN Q. RINTON, AKA Sherwin No. 11-71350
Renton, AKA Sherwin Quiray Rinton,
Agency No. A046-713-187
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2015**
Honolulu, Hawaii
Before: WARDLAW, BERZON, and OWENS, Circuit Judges.
Sherwin Q. Rinton petitions for review of the decision of the Board of
Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s
(“IJ”s) order (1) finding him removable under 8 U.S.C. § 1227(a)(2)(A)(ii) as an
*
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).
alien convicted of two crimes involving moral turpitude not arising out of a single
scheme and (2) denying his application for cancellation of removal under 8 U.S.C.
§ 1229b(a).
1. We reject Rinton’s contention that his deferred acceptance of guilty plea
pursuant to Haw. Rev. Stat. § 853-1(a) for theft in the third degree, Haw. Rev. Stat
§ 708-832, is not a conviction for immigration purposes. 8 U.S.C.
§ 1101(a)(48)(A) provides:
The term “conviction” means, with respect to an alien, a formal
judgment of guilt of the alien entered by a court or, if adjudication of
guilt has been withheld, where —
(i) a judge or jury has found the alien guilty or the alien has entered a
plea of guilty or nolo contendre or has admitted sufficient facts to
warrant a finding of guilt, and
(ii) the judge has ordered some sort of punishment, penalty, or
restraint on the alien’s liberty to be imposed.
(emphasis added).
Rinton’s deferred acceptance plea meets both requirements. Rinton entered
a guilty plea. “[T]he Hawaii deferred-acceptance rule constitutes a ‘punishment,’”
as it “gives a defendant an opportunity to serve a probation-like sentence” that
“restrict[s] the [defendant]’s liberty.” United States v. Bosser, 866 F.2d 315,
316–17 (9th Cir. 1989); Haw. Rev. Stat. § 853-1(a). Thus, although Rinton’s
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deferred guilty plea was pending at the time of the IJ’s order, he was “convicted”
of two theft crimes for the purposes of 8 U.S.C. § 1227(a)(2)(A)(ii). See Lujan-
Armendariz v. I.N.S., 222 F.3d 728, 735-36 (9th Cir. 2000), overruled in part on
other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc);
Yasay v. Holder, 368 F. App’x 727, 728 (9th Cir. 2010). He will remain
“convicted” of the third-degree theft charge for purposes of removal even if the
charge is eventually dismissed.1 See Ramirez-Castro v. INS, 287 F.3d 1172, 1174
(9th Cir. 2002).
We also reject Rinton’s various arguments that 8 U.S.C. § 1101(a)(48)(A)
violates an alien’s right to due process and equal protection. The text of
§ 1101(a)(48)(A) is “unambiguous[],” providing adequate notice of the
immigration consequences of a guilty or nolo contendere plea. Murillo-Espinoza
v. I.N.S., 261 F.3d 771, 775 (9th Cir. 2001) (Gould, J. concurring); see also Lujan-
Armendariz v. I.N.S., 222 F.3d at 737. It ensures that individuals in states with
differing criminal rehabilitative procedures are treated equally for immigration
purposes, see Murillo-Espinoza, 261 F.3d at 774, and is tailored to “the
government’s need for a nationally uniform definition of the term ‘conviction’ for
1
Accordingly, Rinton’s motion to remand the case to the IJ and to hold the
case in abeyance pending the Hawaii court’s ultimate disposition of his plea is
DENIED.
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immigration purposes.” Ramirez-Altamirano v. Holder, 563 F.3d 800, 817 (9th
Cir. 2009) (quoting Herrera-Inirio v. INS, 208 F.3d 299, 309 (1st Cir.2000)),
overruled on other grounds by Nunez-Reyes, 646 F.3d 684.
2. Rinton’s conviction under Haw. Rev. Stat. § 708-833 for theft in the
fourth degree is a crime involving moral turpitude. “Petty theft is a crime
involving moral turpitude . . . .” Flores Juarez v. Mukasey, 530 F.3d 1020, 1022
(9th Cir. 2008) (per curiam); see United States v. Esparza-Ponce, 193 F.3d 1133,
1136–37 (9th Cir. 1999) (“Since the elements of petty theft are the same as theft in
general, the element of moral turpitude would continue to be present whether the
theft be petty or grand.”).
3. Rinton challenges the denial of his application for cancellation of
removal solely on the grounds that the IJ abused her discretion in balancing the
factors relevant to the discretionary determination. We lack jurisdiction to review
such claims. See 8 U.S.C.§ 1252(a)(2)(B)(i); Bazua–Cota v. Gonzales, 466 F.3d
747, 749 (9th Cir. 2006) (per curiam).
The petition for review is DENIED.
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