Aragon Trinidad v. Holder

367 F. App'x 749

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2010
• Docket: 05-75040, 08-70423
• Status: Unpublished

Opinion

MEMORANDUM **

Felipe E. Aragon Trinidad (“Aragon”), a native and citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals (“BIA”) finding him ineligible for cancellation of removal, and the BIA’s denial of his motion to reopen due to changed circumstances making him prima facie eligible for asylum and withholding of removal. We deny the petition for review.

The BIA correctly held that Aragon’s petty theft and domestic violence convictions constituted crimes of moral tui’pitude that rendered him ineligible for cancellation of x’emoval. Contx-ary to Aragon’s ax'guments, petty theft under California Penal Code § 484(a) contains the requisite mens rea — namely, the specific intent to deprive the victim of his property permanently- — -for a moral turpitude offense. Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir.2009). Aragon also conceded before the BIA that his domestic violence offense constituted a crime of moral turpitude. Because Aragon was thus convicted of more than one exime of moral turpitude, Aragon was ineligible for the “petty offense” exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). See In re Garcia-Hernandez, 23 I & N Dec. 590, 594-96 (BIA 2003).

Aragon was also sepax’ately baxred from cancellation by his conviction of a domestic violence offense as defined at 8 U.S.C. § 1227(a)(2). See 8 U.S.C. § 1229b(b)(l)(C) (imposing bar); Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1055-56 (9th Cir.2010) (holding that California Penal Code § 273.5 constitutes a crime of domestic violence). Aragon’s ax'gument that this bar applies only to non-citizens who have been admitted to the United States is unavailing. Although 8 U.S.C. § 1227(a)(2)(E)® renders admitted non-citizens deportable based on domestic violence convictions, it also defines those domestic violence offenses that render non-citizens ineligible for cancellation relief.

The BIA did not abuse its discretion in denying Ax*agon’s motion to reopen. There is no indication that the Board required that Aragon show conclusive eligibility for asylum and withholding of removal, as opposed to a reasonable likelihood of relief. Rather, in deeming Aragon’s evidence to be immaterial, the Board effectively held that Aragon had failed to show prima facie eligibility for x'elief. The Board also did not abuse its disex-etion in finding that the changed conditions in Oaxaca, Mexico did not render Aragon prima facie eligible for asylum and withholding. There is no evidence that Aragon has been politically active in the United States or Mexico, or that his family members have been subject to persecution for their political activities. Thus, Aragon “failed to demonstrate an objective basis for [his] fear that [he] would be targeted for persecution” as “the evidence he introduced was too general to demonstrate a well-founded fear that [he] would personally be persecuted.... ” Konstantinova v. INS, 195 F.3d 528, 530 (9th Cir.1999). Given that Aragon failed to establish prima facie eligibility for relief, we need not address the internal relocation issue.

PETITION FOR REVIEW DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.