Abelardo Valle-Cortez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION JUL 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABELARDO VALLE-CORTEZ, No. 11-70567
Petitioner, Agency No. A041-830-399
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 9, 2015**
Pasadena, California
Before: REINHARDT, TASHIMA, and CLIFTON, Circuit Judges.
Abelardo Valle-Cortez (“Cortez”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing his appeal of an Immigration
Judge’s (“IJ”) decision ordering him removed to Mexico. We dismiss in part and
deny in part Cortez’s petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
1. Cortez argues that the BIA incorrectly found him removable under
Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i). We lack jurisdiction
to review this claim because Cortez failed to exhaust this argument with the BIA.
We may only review a final order of removal if “the alien has exhausted all
administrative remedies available to the alien . . . .” 8 U.S.C. § 1252(d)(1). “This
requirement ‘generally bars us, for lack of subject-matter jurisdiction, from
reaching the merits of a legal claim not presented in administrative proceedings
below.’” Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir. 2011) (per curiam)
(quoting Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004)). Although “we do
not employ the exhaustion doctrine in a formalistic manner,” a petitioner must
raise an issue to the BIA with enough particularity to “‘put the BIA on notice’ as to
the specific issues” that are in dispute, “so that the BIA has ‘an opportunity to pass
on those issues.’” Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)
(quoting Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam)
(brackets omitted)).
In this case, it is plain that Cortez failed to exhaust his INA § 237(a)(2)(B)(i)
argument with the BIA. In his brief to the BIA, Cortez specifically limited the
issues he was raising to his aggravated felony claim, stating that “[t]he only issue
currently before the [BIA] is the statutory eligibility of the Respondent for
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Cancellation of Removal under INA Section 240A(a).” Similarly, in his Notice of
Appeal, Cortez identified only one issue: that “[t]he [IJ] erred in concluding that
[Cortez] was an aggravated felon and thus ineligible for Cancellation of Removal
for Legal Permanent Residents under INA §240A(a).” Thus, the record is clear
that Cortez failed to “put the BIA on notice” that Cortez was challenging the IJ’s
decision finding him removable under INA § 237(a)(2)(B)(i), and the BIA was
deprived of “an opportunity to pass on th[is] issue[].’” Figueroa, 543 F.3d at 492(quoting Zhang, 388 F.3d at 721). Accordingly, we dismiss this portion of
Cortez’s petition for review for failure to exhaust.
2. Cortez also argues that the BIA erred in finding him ineligible for
cancellation of removal under INA § 240A(a), which provides that cancellation of
removal is only available to aliens that “ha[ve] not been convicted of any
aggravated felony.” 8 U.S.C. § 1229b(a)(3). We have jurisdiction to review this
claim under 8 U.S.C. § 1252(a)(2)(D). See Rendon v. Holder, 764 F.3d 1077, 1082
(9th Cir. 2014).
In 2005, Cortez pleaded nolo contendre to violating California Vehicle Code
(“CVC”) § 10851(a), which prohibits a person from either “driv[ing] or tak[ing] a
vehicle not his or her own, without the consent of the owner thereof, and with
intent either to permanently or temporarily deprive the owner thereof of his or her
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title to or possession of the vehicle,” or from being “a party or an accessory to or
an accomplice in the driving or unauthorized taking or stealing” of a vehicle. Cal.
Veh. Code § 10851(a). In Duenas-Alvaraez v. Holder, we concluded that, if the
“limited class of documents” that Shepard v. United States, 544 U.S. 13 (2005),
permits the BIA to consult in applying the modified categorical approach
demonstrates that a defendant was convicted of CVC § 10851(a) as a “principal,
instead of as a mere accessory after the fact,” the crime of conviction is an
aggravated felony as that term is defined by INA § 240A(a). 733 F.3d 812, 814-15
(9th Cir. 2013).1 Cortez’s record of conviction contains two Shepard-approved
documents: the felony complaint and the minute entry recording Cortez’s judgment
and conviction. “When a court using the modified categorical approach to
determine whether an underlying conviction is a predicate offense relies solely on
the link between the charging papers and the abstract of judgment, that link must
be clear and convincing.” Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir.
2014). In other words, the abstract of judgment must “clearly reference[] the count
to which the defendant pleaded guilty.” Id.1
In Duenas-Alvarez, we also concluded that CVC § 10851(a) is not
categorically an aggravated felony, but that it is divisible under Descamps v.
United States, 133 S.Ct. 2276 (2013). 733 F.3d at 814. Cortez does not challenge
either holding here.
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Here, Cortez’s record of conviction contains several “clear references” to the
felony complaint. The docket sheet recording Cortez’s conviction provides that
Cortez pleaded “Nolo contendre to Count 01 a violation of Section 10851(a) VC.
The Court finds the defendant guilty.” The docket sheet further provides “Count
(01) : Disposition : Convicted.” Cortez’s record of conviction clearly demonstrates
the he was convicted of a particular count of the felony complaint (Count 1). Thus,
the BIA was entitled to “consider the facts alleged in the” felony complaint to
discern Cortez’s crime of conviction. Coronado v. Holder, 759 F.3d 977, 986 (9th
Cir. 2014).
Count 1 of the felony complaint charges Cortez with “unlawfully driv[ing]
and tak[ing] a certain vehicle . . . then and there the personal property of MANUEL
LOPEZ without the consent of and with intent, either permanently or temporarily
to deprive the said owner of title to and possession of said vehicle.” In Duenas-
Alvarez, we concluded that the petitioner had been convicted of violating
§ 10851(a) as a principal based on materially indistinguishable language. See 733
F.3d at 815. Accordingly, the BIA did not err in concluding that Cortez had been
convicted of violation § 10851(a) as a principal, rather than as an accessory after
the fact. Moreover, because a violation of CVC § 10851(a) as a principal is an
“aggravated felony,” see id., the BIA properly concluded concluding that Cortez
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was ineligible for cancellation of removal. Accordingly, we deny this portion of
Cortez’s petition for review.
Petition for review DISMISSED in part and DENIED in part.
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