Douglas Calderon Molina v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DOUGLAS ULISES CALDERON No. 10-71100 MOLINA, Agency Nos. A070-865-997 Petitioner, A097-112-666 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 June 11, 2018 San Francisco, California Before: SCHROEDER, GOULD, and DIAZ,** Circuit Judges. Salvadoran native, Douglas Ulises Calderon Molina, seeks review of the Board of Immigration Appeals’s (“BIA”) decision to dismiss his applications for cancellation of removal under 8 U.S.C. § 1229b(b)(1) and voluntary departure * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Albert Diaz, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation. under 8 U.S.C. § 1229c(b). We deny in part and dismiss in part the petition for review. We review legal questions de novo. Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012). But if there is “binding agency precedent on-point in the form of a published BIA opinion, we consider whether Chevron deference is appropriate.” Mendez-Garcia v. Lynch, 840 F.3d 655, 663 (9th Cir. 2016) (internal quotation marks omitted). If Congress has not directly spoken to the question at issue, we will uphold the BIA’s interpretation as long as it is “based on a permissible construction of the statute.” Id. (citation omitted). We deny the petition as to Molina’s application for cancellation of removal. The BIA correctly found Molina ineligible for cancellation of removal because he was convicted of two crimes involving moral turpitude (“CIMTs”), which are disqualifying offenses under 8 U.S.C. § 1182(a)(2). We recognize that each conviction, on its own, may fall under an exception set forth in 8 U.S.C. § 1182(a)(2)(A)(ii), but that provision only applies to applicants convicted of one crime of moral turpitude. Molina stands convicted of two. First, Molina was convicted of petty theft under Cal. Penal Code § 490.5, which we have repeatedly recognized as a CIMT. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir. 2009) (citing cases). Molina argues his conviction should not constitute a CIMT because he was a juvenile at the time he committed 2 the offense. However, “where a juvenile offender is charged and convicted as an adult under state law, the offender has a ‘conviction’ for purposes of the INA.” Rangel-Zuazo v. Holder, 678 F.3d 967, 968 (9th Cir. 2012) (per curiam) (citing Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922‒23 (9th Cir. 2007)). Second, Molina was convicted of assault with a deadly weapon under Cal. Penal Code § 245(a)(1). Because Molina’s petty theft conviction is a CIMT, his case hinges on whether his assault with a deadly weapon conviction is as well. In answering this question, we are not writing on a blank slate. The BIA has recently held, in a published opinion, that a conviction under Cal. ...

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