Armando Ventura Heredia v. Jefferson Sessions

FILED NOT FOR PUBLICATION DEC 28 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARMANDO VENTURA HEREDIA, No. 15-72580 AKA Armando Quintero, Agency No. A041-105-074 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 April 20, 2017 San Francisco, California Before: SCHROEDER and RAWLINSON, Circuit Judges, and STAFFORD,** District Judge. Armando Ventura Heredia (Ventura), a native and citizen of Mexico and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation. lawful permanent resident, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge’s (IJ) decision finding him removable because he was convicted of two or more crimes involving moral turpitude (CIMT). 1. Ventura contends that California Penal Code (CPC) § 484(a) is overbroad when compared to a generic larceny offense because § 484(a) criminalizes temporary takings, and overbroad when compared to a generic fraud offense because embezzlement may occur without misrepresentation and without benefit. We have consistently held that a conviction under CPC § 484(a) is for a CIMT. See e.g., Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir. 2009); Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008); United States v. Esparza–Ponce, 193 F.3d 1133, 1136 (9th Cir. 1999). Additionally, we have held that embezzlement, a crime which involves the intent to defraud, is a crime of moral turpitude. See Delgado-Chavez v. I.N.S., 765 F.2d 868, 869 (9th Cir. 1985). Moreover, the California statute explicitly proscribes conduct that is fraudulent, 2 applying to circumstances in which a defendant “fraudulently appropriate[s] property which has been entrusted to him.” Cal. Penal Code § 484(a).1 2. Ventura contends that California infractions are not “convictions” pursuant to 8 U.S.C. § 1101(a)(48)(A) because the factors articulated in Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004), render infraction proceedings non- criminal proceedings. We disagree. Infractions under California law give rise to punishment in the form of fines. See Cal. Penal Code § 19.8(b) (“Except in cases where a different punishment is prescribed, every offense declared to be an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250)”). Additionally, a defendant charged with an infraction may elect to have the matter proceed as a misdemeanor, thereby triggering the right to a jury trial and to counsel. See California Penal Code § 17(d)(1); see also People v. Smith, 205 Cal. App. 4th Supp. 1, 4-5 (2012). Also, unlike the Oregon classification scheme at issue in Matter of Eslamizar, which “define[d] crimes and violations in mutually exclusive terms,” 23 1 To the extent Ventura relies on People v. Talbot, 28 P.2d 1057 (Cal. 1934) as evidence that the California Supreme ...

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