Jose Lopez-Galicia v. Jefferson Sessions

NOT FOR PUBLICATION FILED JUL 3 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE LOPEZ-GALICIA, AKA Jose Luis No. 15-71264 Lopez, Agency No. A200-878-214 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 May 8, 2018 Portland, Oregon Before: RAWLINSON and NGUYEN, Circuit Judges, and GARBIS,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation. Prior to his retirement, Judge Garbis fully participated in this case and formally concurred in this disposition after deliberations were complete. 1 Jose Lopez-Galicia petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ) decision denying Lopez-Galicia’s application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review factual findings under the deferential substantial evidence standard. Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). We review de novo the BIA’s interpretation of Lopez- Galicia’s statute of conviction. Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir. 2012). However, we afford deference to the BIA’s conclusion regarding whether the statute of conviction categorically criminalizes turpitudinous conduct. Id. at 1159-60. Because the BIA’s decision in this case is neither precedential nor based on controlling precedent, we “defer to the BIA’s determination only to the extent that it has the power to persuade (i.e. Skidmore deference).” Id. at 1160. 1. The BIA reasonably determined that a conviction for reckless endangerment in violation of Oregon Revised Statute § 163.195 is categorically a crime involving moral turpitude. Section 163.195 provides that “[a] person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” We have previously affirmed the BIA’s conclusion that reckless conduct that places another person in substantial risk of imminent death is 2 categorically a crime involving moral turpitude. See Leal v. Holder, 771 F.3d 1140, 1148–49 (9th Cir. 2014). Section 163.195 requires the same culpable mental state, and although the requisite harm may not be as severe as a substantial risk of imminent death, the BIA reasonably determined that reckless conduct that creates a substantial risk of serious physical injury is similarly reprehensible. 2. The IJ did not violate Lopez-Galicia’s due process rights by failing to conduct a full evidentiary hearing. “A due process violation occurs where (1) the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.” Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (internal quotation marks omitted). ...

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