NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GONZALO GARCIA-FABELA, No. 19-70427 Petitioner, Agency No. A099-010-084 v. MEMORANDUM* MERRICK GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 2, 2021 Portland, Oregon Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge. Partial Concurrence and Partial Dissent by Judge PAEZ Gonzalo Garcia-Fabela petitions for review of an order of the Board of Immigration Appeals (BIA) denying his motion to terminate for lack of jurisdiction; denying his motion to remand; and dismissing his appeal from an immigration judge’s decision denying his applications for cancellation of removal, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. Page 2 of 5 asylum, withholding of removal, and protection under the Convention Against Torture (CAT). 1. The BIA did not err in denying Garcia-Fabela’s motion to terminate his removal proceedings. Garcia-Fabela argues the immigration court lacked jurisdiction because his initial notice to appear (NTA) did not include the time and date for his first hearing in Immigration Court. We previously rejected this jurisdictional argument in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), cert. denied sub nom. Karingithi v. Barr, 140 S. Ct. 1106 (Feb. 24, 2020), but Garcia-Fabela argues that Karingithi is irreconcilable with the Supreme Court’s later decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). We conclude, however, that Karingithi is not clearly irreconcilable with Kisor because the Karingithi court reached its conclusion by interpreting the regulations itself, rather than by deferring to the BIA. 913 F.3d at 1160–61. Thus, we will not reexamine controlling precedent. Cf. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003). As such, Garcia-Fabela’s motion to terminate is foreclosed by Karingithi, and we affirm the BIA’s denial of the motion. Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (“So long as the court can apply our prior circuit precedent without running afoul of the intervening authority it must do so.” (quotation omitted)). Page 3 of 5 2. The BIA reasonably concluded that menacing under Oregon Statute § 163.190 is a crime involving moral turpitude (CIMT) and did not err in denying Garcia-Fabela’s motion to remand for further consideration of his application for cancellation of removal. We defer to the BIA’s interpretation of whether a crime involves moral turpitude, if warranted. Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc). Although the BIA’s decision in Garcia-Fabela’s case is unpublished, the BIA has since issued a published decision concluding that menacing under Oregon law is a CIMT. See Matter of J-G-P-, 27 I. & N. Dec. 642 (BIA 2019). To grant Garcia-Fabela’s petition, we would therefore need to find that the BIA’s …
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