Gonzalez Hernandez v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER GONZALEZ No. 21-1038
HERNANDEZ, Agency No.
A044-367-299
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2023**
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO, District
Judge.***
Francisco Javier Gonzalez Hernandez (Gonzalez Hernandez), a native and
citizen of Mexico, appeals the Board of Immigration Appeal’s (BIA) decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
upholding the Immigration Judge’s (IJ) determination that he is removable as
charged and ineligible for cancellation of removal because his prior conviction
under California Penal Code (CPC) § 508 is both a categorical crime involving
moral turpitude (CIMT) and an aggravated felony offense. This Court has
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.
1. Gonzalez Hernandez argues that although he was convicted under
California’s embezzlement statute, the IJ and BIA (agency) should have conducted
a CIMT analysis under California’s indivisible theft statute because embezzlement,
larceny, and false pretenses are alternative means of committing the single offense
of theft. See Lopez-Valencia v. Lynch, 798 F.3d 863, 869, 871 (9th Cir. 2015);
People v. Vidana, 1 Cal. 5th 632, 648 (2016). The Court need not resolve this
question because the conviction constitutes a CIMT under either statute.
This Court has consistently held that a conviction for theft under CPC § 484
constitutes a CIMT. Ballinas-Lucero v. Garland, 44 F.4th 1169, 1173 (9th Cir.
2022); Silva v. Garland, 993 F.3d 705, 716–17 (9th Cir. 2021); Castillo-Cruz v.
Holder, 581 F.3d 1154, 1160 (9th Cir. 2009); Flores Juarez v. Mukasey, 530 F.3d
1020, 1022 (9th Cir. 2008). And because embezzlement under CPC § 508 requires
an intent to defraud, a conviction analyzed under this statute would necessarily
constitute a CIMT. See Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1120 (9th Cir.
2020) (“a state conviction qualifies as a fraudulent CIMT when the intent to
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defraud is explicit in the statutory definition of the crime or implicit in the nature
of the crime”); People v. Sisuphan, 181 Cal. App. 4th 800, 813 (2010)
(“Fraudulent intent is an essential element of embezzlement.”).
2. Gonzalez Hernandez argues that his embezzlement conviction is not an
aggravated felony because it does not match the definition of theft under 8 U.S.C.
§ 1101(a)(43)(G). But the agency never made this finding. Instead, the agency
found that Gonzalez Hernandez’s conviction matched the definition of a fraud
offense under 8 U.S.C. § 1101(a)(43)(M). Because Gonzalez Hernandez fails to
address the actual federal provision the agency relied upon, we find this issue
waived. See Turtle Island Restoration Network v. U.S. Dep’t of Com., 672 F.3d
1160, 1166 n.8 (9th Cir. 2012).
3. Finally, Gonzalez Hernandez argues that remand is warranted under Pereida
v. Wilkinson, 141 S. Ct. 754 (2021) because he can now “establish eligibility for
relief from removal through his testimony.” He fails to establish how his
testimony would be relevant. He does not contest that his victims suffered more
than $10,000 in losses or that he was convicted of a theft-related offense under
California law. We therefore find remand unwarranted.
The motion for a stay of removal is denied as moot. The temporary stay of
removal remains in effect until issuance of the mandate.
PETITION DENIED.
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