NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSCAR FRANCISCO JIMENEZ- No. 18-70576 ORNELAS, Agency No. A205-158-200 Petitioner, v. MEMORANDUM* JEFFREY A. ROSEN, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 11, 2020** San Francisco, California Before: W. FLETCHER, IKUTA, and VANDYKE, Circuit Judges. Oscar Francisco Jimenez-Ornelas (“Jimenez”) petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his request for cancellation of removal and denying his petition for asylum, withholding of removal, and protection under * 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 Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review. We review the BIA’s determination of purely legal questions de novo. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000). The BIA’s factual findings are reviewed for substantial evidence. Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019). Under this deferential standard, factual findings are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Lynch, 802 F.3d 972, 974–75 (9th Cir. 2015). Accordingly, in order to reverse the BIA’s finding under substantial evidence review, “we must find that the evidence not only supports that conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). 1. The BIA properly applied the BIA’s January 2013 decision in Cortes Medina to Jimenez’s September 16, 2013 conviction for indecent exposure under California Penal Code § 314.1. Matter of Alfonso Cortes Medina, 26 I. & N. Dec. 79 (B.I.A. 2013). “Under Brand X, we must defer ... to the BIA’s decision in Cortes Medina” construing a crime involving moral turpitude (“CIMT”) to include indecent exposure. Betansos v. Barr, 928 F.3d 1133, 1141–42 (9th Cir. 2019) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)). Because the indecent exposure conviction is Jimenez’s second CIMT, he is 2 ineligible for cancellation of removal. Id. at 1136 (citing 8 U.S.C. § 1229b(b)(1)(B), (C)). Jimenez argues that the Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982) factors regarding retroactivity weigh in favor of applying our 2010 opinion in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), not Cortes Medina. But Jimenez committed and was convicted of indecent exposure months after Cortes Medina redefined a CIMT to include his offense. Therefore, the Montgomery Ward factors do not apply here, and the IJ and BIA properly concluded Jimenez was ineligible for cancellation of removal due to his second CIMT conviction. 2. Jimenez’s asylum and withholding of ...
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