Membreno v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ANGELICA MEMBRENO, 
Petitioner, No. 03-71214
v.
 Agency No.
A90-046-605
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 21, 2005—San Francisco, California
Filed October 14, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Andrew J. Kleinfeld,
M. Margaret McKeown, Ronald M. Gould, Richard A. Paez,
Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
14127
MEMBRENO v. GONZALES 14129
COUNSEL
Shan D. Potts, Berke Law Offices, Los Angeles, California,
for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Donald E. Keener, Deputy Director, Office of Immigration
Litigation, and John Andre, Senior Litigation Counsel, Office
of Immigration Litigation, United States Department of Jus-
tice, Washington, D.C., for the respondent.
OPINION
GOULD, Circuit Judge:
Maria Angelica Membreno petitions for review of a deci-
sion of the Board of Immigration Appeals (“BIA”), denying
her motion to reopen her removal proceedings. We dismiss
the petition in part and deny it in part.
14130 MEMBRENO v. GONZALES
I1
Membreno, a native and citizen of Mexico, entered the
United States as a temporary resident in 1987. In 1992, she
was arrested after shooting (but not killing) the owner of a
restaurant that competed with the restaurant owned by Mem-
breno and her husband. Membreno pled guilty to a felony
count of “willfully and unlawfully commit[ting] an assault . . .
with a firearm” in violation of California Penal Code section
245(a)(2). The state criminal court suspended the imposition
of her sentence and granted her three years of probation, the
first 180 days of which were to be served in the county jail.
On April 13, 2000, Membreno was seized at the port of
entry in San Ysidro, California. The Immigration and Natural-
ization Service (“INS”)2 commenced removal proceedings
and a hearing was held before an immigration judge (“IJ”).
After the hearing, the IJ issued a written decision ordering
Membreno deported and removed to Mexico on the ground
that her California conviction for assault with a firearm con-
stituted “a crime involving moral turpitude” under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). In reaching this conclusion, the IJ relied
explicitly on BIA precedents holding that assault with a
deadly weapon is a crime involving moral turpitude. See In re
Medina, 15 I. & N. Dec. 611, 612-14 (BIA 1976); In re Goo-
dalle, 12 I. & N. Dec. 106, 107 (BIA 1967); In re G—R—, 2
I. & N. Dec. 733, 734-36 (BIA 1946) (holding that assault
with a deadly weapon in violation of California Penal Code
1
We adopt much of our factual statement and procedural history from
the summary set forth in the earlier three-judge panel opinion at Mem-
breno v. Ashcroft, 385 F.3d 1245, 1246-47 (9th Cir.) (per curiam), with-
drawn by 388 F.3d 738 (9th Cir. 2004).
2
The Department of Justice transferred the functions of the Immigration
and Naturalization Service to the Department of Homeland Security in
March 2003. See Homeland Security Act of 2002, Pub. L. No. 107-296,
§ 471, 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291) (2002). For con-
venience, we refer to the INS throughout rather than the Department of
Homeland Security.
MEMBRENO v. GONZALES 14131
section 245 is a crime involving moral turpitude). On June 28,
2002, the BIA summarily affirmed the IJ’s decision, and
Membreno did not file a timely petition for review of the
affirmance.
On September 24, 2002, Membreno timely filed a motion
to reopen removal proceedings, arguing that she was not
removable because assault with a firearm under California
Penal Code section 245(a)(2) fell within the scope of the
“petty offense” exception to the inadmissibility bar triggered
by an alien’s conviction for a crime involving moral turpitude.
See 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The BIA denied Mem-
breno’s motion to reopen on February 20, 2003, and a petition
for review of this decision was filed on March 18, 2003.
II
In her petition for review of the BIA’s denial of her motion
to reopen, Membreno challenges the BIA’s adoption of the
IJ’s determination that Membreno was removable pursuant to
8 U.S.C. § 1182(a)(2)(A)(i)(I), arguing that assault with a
firearm under California Penal Code section 245 does not
constitute a crime involving moral turpitude for the purposes
of the Immigration and Nationality Act’s (INA) bar to admis-
sibility. Membreno further argues that the BIA erred in deny-
ing her motion to reopen because even if her crime of
conviction is one involving moral turpitude, she is not sub-
ject to 8 U.S.C. § 1182(a)(2)(A)(i)(I)’s bar to admissibility
because she qualifies for the petty offense exception outlined
in 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
[1] We lack jurisdiction to review Membreno’s contention
that the BIA erred in determining that she committed a crime
involving moral turpitude when she violated California Penal
Code section 245(a)(2),3 because the petition before us was
3
Because the BIA summarily affirmed the IJ’s decision we review the
IJ’s decision as if it were the BIA’s decision. Thomas v. Gonzales, 409
F.3d 1177, 1182 (9th Cir. 2005) (en banc).
14132 MEMBRENO v. GONZALES
filed almost a year after the issuance of that decision. The
governing jurisdictional statute, 8 U.S.C. § 1252(b)(1), states
that a “petition for review must be filed not later than 30 days
after the date of the final order of removal.” “This time limit
is mandatory and jurisdictional, and cannot be tolled.” Singh
v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).4 That Membreno
timely petitioned for review of the BIA’s denial of her motion
to reopen is irrelevant because of the Supreme Court’s hold-
ing in Stone v. INS that an order of removal “is final, and
reviewable, when issued,” and that “[i]ts finality is not
affected by the subsequent filing of a motion to reconsider.”
514 U.S. 386, 405 (1995); see also Caruncho v. INS, 68 F.3d
356, 359-60 (9th Cir. 1995).
[2] Although we do not have jurisdiction to review the
BIA’s assessment of moral turpitude or its order of removal
because the time in which to petition for review has elapsed,
we do have jurisdiction to review the denial of Membreno’s
motion to reopen for abuse of discretion. See Caruncho, 68
F.3d at 360-62. In her motion to reopen, Membreno asserted
that she would not be subject to removal even if her crime
were deemed to be one of moral turpitude because she quali-
fies for the INA’s “petty offense” exception, and that position
is advanced in her petition for review. We review the BIA’s
decision on a motion to reopen for abuse of discretion.
Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). The BIA
properly denied Membreno’s motion to reopen because Mem-
breno presented the BIA with no new facts, but only new
legal arguments. “A motion to reopen proceedings shall not
be granted unless it appears to the Board that evidence sought
to be offered is material and was not available and could not
4
Our case law recognizes two exceptions to this rule, but Membreno
does not claim, and cannot claim, that either exception applies here. See
Singh, 315 F.3d at 1188 (noting that court of appeals can assert jurisdic-
tion over untimely petitions for review where alien was officially misled
as to time in which to file notice of appeal or where BIA failed to comply
with certain federal regulations requiring the mailing of its decision to the
petitioner’s (or his counsel’s) address of record).
MEMBRENO v. GONZALES 14133
have been discovered or presented at the former hearing . . . .”
8 C.F.R. § 1003.2(c)(1). The BIA did not abuse its discretion
when it declined to reopen proceedings because Membreno
presented no new facts in her motion to reopen.5
DISMISSED in part and DENIED in part.
5
We cannot here grant relief on the petition for review by construing
Membreno’s motion to reopen instead as a motion to reconsider. See
Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005) (affirming the
BIA’s decision to construe a motion to reconsider as a motion to reopen
when the motion alleged new facts rather than legal error). A motion to
reconsider must be filed “within 30 days after the mailing of the Board
decision,” 8 C.F.R. § 1003.2(b)(2), and Membreno’s motion was filed
nearly 90 days after the initial decision. Furthermore, a motion to recon-
sider “shall state the reasons for the motion by specifying the errors of fact
or law in the prior Board decision . . . .” 8 C.F.R. § 1003.2(b)(1). Mem-
breno’s motion does not point to any alleged errors of fact or law in the
original BIA decision, but rather asserts a new legal argument not origi-
nally before the Board.