FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELISA DE JESUS MENENDEZ, No. 14-72730 Petitioner, Agency No. v. A075-594-042 MATTHEW WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 8, 2018 Pasadena, California 2 MENENDEZ V. WHITAKER HECTOR MARTIN RODRIGUEZ- No. 16-70365 CASTELLON, Petitioner, Agency No. A035-215-035 v. MATTHEW WHITAKER, Acting OPINION Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 8, 2018* Pasadena, California Filed November 8, 2018 Before: William A. Fletcher, Consuelo M. Callahan, and John B. Owens, Circuit Judges. Opinion by Judge W. Fletcher; Concurrence by Judge Callahan * The panel unanimously concludes that Rodriguez-Castellon v. Whitaker is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). MENENDEZ V. WHITAKER 3 SUMMARY** Immigration The panel granted separate petitions for review filed by Elisa de Jesus Menendez and Hector Rodriguez-Castellon from decisions of the Board of Immigration Appeals, and held that California Penal Code § 288(c)(1), which prohibits lewd or lascivious acts when a victim is a child of 14 or 15 years and the defendant is at least 10 years older than the child, is neither a crime involving moral turpitude nor categorically a “crime of child abuse.” Menendez, a lawful permanent resident, was placed in removal proceedings after her conviction under § 288(c)(1). Menendez conceded removability under 8 U.S.C. § 1227(a)(2)(E)(i), as a noncitizen convicted of a crime of child abuse, and applied for cancellation of removal. However, the Immigration Judge and BIA found Menendez ineligible for cancellation of removal on the ground that her conviction under § 288(c)(1) was categorically a crime of moral turpitude that triggered the stop-time rule, cutting off her accrual of the period of continuous residence she required for cancellation. Rodriguez-Castellon, also a lawful permanent resident, was initially found removable on the ground that his conviction under § 288(c)(1) was a crime of violence under 18 U.S.C. § 16(b) and therefore an aggravated felony. After this court held in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 MENENDEZ V. WHITAKER 2015), that 18 U.S.C. § 16(b) is unconstitutionally vague, Rodriguez-Castellon filed a motion to reconsider with the BIA. The BIA acknowledged that the motion was untimely, but noted that a fundamental change in law may warrant sua sponte reopening. However, the BIA declined to exercise its sua sponte authority after holding that Rodriguez was removable under U.S.C. § 1227(a)(2)(E)(i), as a noncitizen convicted of a crime of child abuse, even if he was no longer removable as an aggravated felon. In deciding Menendez’s petition, the panel held that Cal. Penal Code § 288(c)(1) is not categorically a crime involving moral turpitude, explaining that, because the offense requires only sexual intent, and because a good-faith reasonable mistake of ...
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