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Mendoza v. Holder

October 27, 2010

LUIS ENRIQUE MENDOZA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-612-890.

The opinion of the court was delivered by: N.R. Smith, Circuit Judge

FOR PUBLICATION

OPINION

Submitted October 5, 2010*fn1 -- San Francisco, California

Before: Pamela Ann Rymer and N. Randy Smith, Circuit Judges, and Ronald B. Leighton, District Judge.*fn2

OPINION

Robbery under California Penal Code section 211 is a crime involving moral turpitude (CIMT) for the purposes of Immigration and Nationality Act (INA) § 212(a)(2)(A)(i)(I). Therefore, the robbery conviction of Luis Enrique Mendoza, a native and citizen of Mexico, renders him inadmissible and ineligible for adjustment of status. We must then deny the petition for review.

Facts and Procedural History

Mendoza entered the United States without inspection on or about December 2, 1983. On April 5, 2005, he was convicted of robbery under California Penal Code section 211 in the Superior Court of California and sentenced to 365 days imprisonment. Based on this conviction, the Department of Homeland Security issued a Notice to Appear (NTA) on October 3, 2005. The NTA charged that Mendoza was subject to removal because (1) Mendoza was present in the United States without being admitted or paroled (INA § 212(a)(6)(A)(i)), and (2) he had been convicted of a CIMT*fn3 (INA § 212(a)(2)(A)(i)(I)).*fn4

At the master calender hearing on November 28, 2005, the immigration judge (IJ) determined that Mendoza had been convicted of a CIMT (as charged in the NTA) when he was convicted for robbery in 2005, because robbery was both a crime of theft and a crime of violence. He also determined that Mendoza was present in the United States without being admitted. After receiving Mendoza's application for adjustment of status, he then set an individual hearing to address whether Mendoza qualified for a waiver of inadmissibility under 8 U.S.C. § 1182(h) ("212(h) waiver").*fn5

At the individual hearing on February 8, 2006, the IJ again found that Mendoza was removable under both 8 U.S.C. § 1182(a)(6)(A)(i) (present without admission) and 8 U.S.C. § 1182(a)(2)(A)(i)(I) (having been convicted of a CIMT). He also determined that robbery was both a crime of violence and an aggravated felony, making Mendoza ineligible for most forms of relief. Regarding the 212(h) waiver, the IJ found that Mendoza had not shown that his removal would result in extreme hardship to his parents. Further, even if Mendoza had shown such hardship, the IJ determined that Mendoza did not warrant a favorable exercise of discretion in light of Mendoza's criminal record. Lastly, the IJ denied (1) the motion to terminate proceedings, (2) the 212(h) waiver, (3) adjustment of status, and (4) voluntary departure. Mendoza was then ordered removed to Mexico based on the allegations in the NTA.

Mendoza timely appealed to the Board of Immigration Appeals (BIA). The BIA found "no error in the Immigration Judge's conclusion that the respondent is removable for commission of a crime involving moral turpitude." The BIA incorrectly stated that Mendoza argued that "his conviction for burglary does not constitute a [CIMT]." The BIA cited De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (which mentions that burglary is a CIMT) and Matter of De La Nues, 18 I. & N. Dec. 140, 145 (BIA 1981) ("Burglary and theft or larceny, whether grand or petty, are crimes involving moral turpitude.") to uphold the IJ's determination that Mendoza was removable for a conviction for a CIMT.*fn6 The BIA did not specifically address the IJ's denial of Mendoza's 212(h) waiver, stating only that Mendoza "d[id] not meaningfully identify any error in the Immigration Judge's conclusion that the respondent is ineligible for relief from removal and any such arguments have been waived."

Mendoza petitions for review of the BIA's determination that he was convicted of a CIMT and therefore was inadmissible under 8 U.S.C. ยง 1182(a)(2)(A)(i)(I). He also petitions for review of the IJ's discretionary denial ...


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