Argued and Submitted, Pasadena, California: January
As Amended March 14, 2014.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-291-793.
Curtis F. Pierce, Los Angeles, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, William C. Minick (argued), Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Alvin K. Hellerstein, Senior District Judge.[*]
RAWLINSON, Circuit Judge:
Petitioner Javier Perez-Palafox (Perez-Palafox), a citizen of Mexico and a lawful permanent resident, petitions for review of the decision of the Board of Immigration Appeals (BIA) vacating the withholding of removal relief granted to Perez-Palafox bye an Immigration Judge (IJ). The BIA concluded that Perez-Palafox was not eligible for withholding of removal because his conviction for transportation of methamphetamine
in violation of California Health & Safety Code § 11379(a) constituted a particularly serious crime.
As we later explain, we have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the BIA's determination that Perez-Palafox committed a particularly serious crime. See Pechenkov v. Holder, 705 F.3d 444 (9th Cir. 2012). Because the BIA did not engage in improper factfinding, we deny the petition for review.
Perez-Palafox is a native and citizen of Mexico who was admitted to the United States as an immigrant at the age of six. Sixteen years later, on April 16, 1990, Perez-Palafox was convicted in a California state court of the felony offense of Possession for Sale of a Controlled Substance in violation of California Health & Safety Code (Cal. H& S Code) § 11351, and sentenced to three years' probation, with the first 180 days to be spent in county jail. Five days after his conviction, Perez-Palafox obtained the status of lawful permanent resident.
On April 5, 2001, the Immigration and Naturalization Service (INS) issued a Notice to Appear (NTA) alleging that Perez-Palafox was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. On September 30, 2002, an IJ issued an in absentia order of removal against Perez-Palafox after he failed to appear at his scheduled removal proceeding.
On November 26, 2002, an IJ denied Perez-Palafox's motion to reopen seeking recision of the in absentia order. On February 17, 2004, the BIA granted Perez-Palafox's appeal, finding that Perez-Palafox established exceptional circumstances for his failure to appear, and remanded the case to the Immigration Court for further proceedings.
On April 19, 2005, an IJ found Perez-Palafox removable as charged in the NTA. Perez-Palafox applied for cancellation of removal, asylum, and withholding of removal, based on mental and physical disabilities stemming from a brain injury incurred in 2000. The government did not oppose Perez-Palafox's application for withholding of removal, and withholding of removal was granted.
One year after he was granted withholding of removal relief, Perez-Palafox was convicted by guilty plea in a California state court of the felony offense of Sale/Transportation of a Controlled Substance in violation of Cal. H& S Code § 11379(a). He was sentenced to three years' imprisonment.
The government subsequently filed a motion to reopen for the purpose of terminating Perez-Palafox's withholding of removal relief. An IJ granted the motion to reopen. During the reopened proceedings,
the government relied on conviction documents and the police report for Perez-Palafox's 2006 conviction to establish that Perez-Palafox had been ...