DocketNumber: 11-71793
Citation Numbers: 564 F. App'x 884
Judges: Nelson, Nguyen, Paez
Filed Date: 3/19/2014
Status: Non-Precedential
Modified Date: 8/31/2023
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 19 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JORGE ALEJANDRO ROMERO- No. 11-71793 MENDEZ, a.k.a. Jorge Alejandro Romero, Agency No. A077-103-812 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 10, 2014** Pasadena, California Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges. Jorge Alejandro Romero-Mendez (“Romero-Mendez”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) finding him removable * 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). under8 U.S.C. § 1227
(a)(2)(A)(iii) as an alien convicted of an aggravated felony after admission to the United States. We deny in part and dismiss in part. 1. The BIA correctly found Romero-Mendez removable based on his conviction under California Penal Code Section 273.5(a) and the two-year state prison sentence he received following violation of probation. The former qualifies categorically as a “crime of violence” under18 U.S.C. § 16
(a). See Banuelos-Ayon v. Holder,611 F.3d 1080
, 1083 (9th Cir. 2010). The latter constitutes a “term of imprisonment [of] at least one year” under8 U.S.C. § 1101
(a)(48)(B).1 Because we find this conclusion clear based on the current administrative record, we deny Romero-Mendez’s motion to supplement the administrative record. We also reject Romero-Mendez’s contention that the two-year state prison sentence he received was imposed as punishment for his violation of probation, and not for his conviction under Section 273.5(a). The record shows that Romero- Mendez admitted that he violated the terms of his probation, had his prior probationary sentence vacated, and received a two-year state prison sentence for his conviction under Section 273.5(a)—something clearly permitted under 1 Romero-Mendez’s suggestion that the sentencing court did not suspend the imposition of sentence when granting him probation is wrong as a matter of California law. SeeCal. Penal Code § 1203
(a). 2 California Penal Code Section 1203.1(j). See alsoCal. Penal Code § 273.5
(a) (permitting punishment by imprisonment in state prison for up to four years). Because Romero-Mendez is removable based on his conviction under Section 273.5(a) and his two-year state prison sentence, we lack jurisdiction over his petition and dismiss the petition in part. See Prakash v. Holder,579 F.3d 1033
, 1039 (9th Cir. 2009). 2. Romero-Mendez cannot establish a viable claim of ineffective assistance of counsel. In order to succeed on a claim of ineffective assistance of counsel during removal proceedings, a petitioner must demonstrate prejudice. Ray v. Gonzales,439 F.3d 582
, 587 (9th Cir. 2006). “[W]here counsel’s performance was inadequate but the petitioner still had an opportunity to present his claim, ‘[p]rejudice is found when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings.’”Id.
(quoting Ortiz v. INS,179 F.3d 1148
, 1153 (9th Cir. 1999)) (second alteration in original). This is a hurdle Romero-Mendez cannot surmount because, as noted above, the record establishes his removability on the basis of his conviction under California Penal Code Section 273.5(a) and the two-year state prison sentence he received. Thus, we deny Romero-Mendez’s petition in part. 3 3. Romero-Mendez’s argument that8 U.S.C. § 1227
(a)(2)(A)(iii), as applied in his case, is unconstitutionally broad lacks merit. As a preliminary matter, Romero-Mendez fails to identify any portion of the Federal Constitution that the statute purportedly violates. Moreover, his assertion that Congress intended removability under8 U.S.C. § 1227
(a)(2)(A)(iii) to be limited to “the most egregious offenses” is contradicted by the plain language of the statute and the various definitions it incorporates. See8 U.S.C. § 1101
(a)(43)(F);8 U.S.C. § 1227
(a)(2)(A)(iii);18 U.S.C. § 16
(a). We therefore deny Romero-Mendez’s petition in part. DISMISSED in part and DENIED in part. 4 FILED Romero-Mendez v. Holder, No. 11-71793 MAR 19 2014 MOLLY C. DWYER, CLERK Circuit Judge NGUYEN, concurring in part and concurring in the judgment: COURT OF APPEALS U.S. For the reasons offered in my concurrence in Perez Ramirez v. Holder, No. 10-71198,2014 WL 961883
(9th Cir. Mar. 13, 2014), as to Part 1 of the memorandum disposition, I concur only in the judgment.