Jose Lopez-Galicia v. Jefferson Sessions

NOT FOR PUBLICATION FILED
JUL 3 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LOPEZ-GALICIA, AKA Jose Luis No. 15-71264
Lopez,
Agency No. A200-878-214
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 8, 2018
Portland, Oregon
Before: RAWLINSON and NGUYEN, Circuit Judges, and GARBIS,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marvin J. Garbis, United States District Judge for the District
of Maryland, sitting by designation. Prior to his retirement, Judge Garbis fully
participated in this case and formally concurred in this disposition after
deliberations were complete.
1
Jose Lopez-Galicia petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ)
decision denying Lopez-Galicia’s application for cancellation of removal.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review factual findings
under the deferential substantial evidence standard. Ai Jun Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014). We review de novo the BIA’s interpretation of Lopez-
Galicia’s statute of conviction. Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th
Cir. 2012). However, we afford deference to the BIA’s conclusion regarding
whether the statute of conviction categorically criminalizes turpitudinous conduct.
Id. at 1159-60. Because the BIA’s decision in this case is neither precedential nor
based on controlling precedent, we “defer to the BIA’s determination only to the
extent that it has the power to persuade (i.e. Skidmore deference).” Id. at 1160.
1. The BIA reasonably determined that a conviction for reckless
endangerment in violation of Oregon Revised Statute § 163.195 is categorically a
crime involving moral turpitude. Section 163.195 provides that “[a] person
commits the crime of recklessly endangering another person if the person
recklessly engages in conduct which creates a substantial risk of serious physical
injury to another person.” We have previously affirmed the BIA’s conclusion that
reckless conduct that places another person in substantial risk of imminent death is
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categorically a crime involving moral turpitude. See Leal v. Holder, 771 F.3d
1140, 1148–49 (9th Cir. 2014). Section 163.195 requires the same culpable mental
state, and although the requisite harm may not be as severe as a substantial risk of
imminent death, the BIA reasonably determined that reckless conduct that creates a
substantial risk of serious physical injury is similarly reprehensible.
2. The IJ did not violate Lopez-Galicia’s due process rights by failing to
conduct a full evidentiary hearing. “A due process violation occurs where (1) the
proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates prejudice, which
means that the outcome of the proceeding may have been affected by the alleged
violation.” Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)
(internal quotation marks omitted). Because Lopez-Galicia’s conviction on two
counts of reckless endangerment renders him statutorily ineligible for cancellation
of removal, the opportunity to put on evidence of hardship at a full evidentiary
hearing would have been futile.1
1
The IJ ruled that Lopez-Galicia had been convicted of three crimes
involving moral turpitude—identity theft and two counts of reckless
endangerment. On appeal to the BIA, Lopez-Galicia did not argue that he is
eligible for cancellation of removal even if reckless endangerment were a crime
involving moral turpitude. Accordingly, any such claim is unexhausted, and we
lack jurisdiction to review it. Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010).
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3. In light of the impact of our ruling on reckless endangerment, we need
not address Lopez-Galicia’s conviction for identity theft or his contention that the
petty offense exception applies. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(per curiam) (“As a general rule, courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”).
PETITION FOR REVIEW DENIED.
4