Artemio Meraz-Hernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 2021
• Docket: 19-72996
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARTEMIO MERAZ-HERNANDEZ, AKA No. 19-72996 Artemio Hernandez Meraz, Agency No. A090-848-665 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Artemio Meraz-Hernandez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his motion to terminate and his

application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1252. We review de novo questions of law, including whether an offense is a

crime involving moral turpitude. Orellana v. Barr, 967 F.3d 927, 932 (9th Cir.

2020). We review for abuse of discretion the agency’s denial of a motion to

terminate. Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We review de

novo claims of due process violations in immigration proceedings. Jiang v.

Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the

petition for review.

The agency did not err in finding Meraz-Hernandez removable as an “alien

who at any time after admission is convicted of two or more crimes involving

moral turpitude, not arising out of a single scheme of criminal misconduct,” see 8

U.S.C. § 1227(a)(2)(A)(ii), where Meraz-Hernandez’s convictions under California

Penal Code (“CPC”) section 646.9(a) and (c)(2) are categorically crimes involving

moral turpitude, see Orellana, 967 F.3d at 938 (concluding a conviction under

CPC § 646.9(a) is categorically a crime involving moral turpitude); id. at 933 n.5

(“[CPC § 646.9] contains other provisions that enhance the penalty for a violation

of § 646.9(a) depending on the presence of other factors. Cal. Pen. Code

§ 646.9(b)–(c). A § 646.9(a) violation is a predicate for these enhancements.”).

Thus, the agency did not abuse its discretion in denying Meraz-Hernandez’s

motion to terminate.

2 19-72996 We lack jurisdiction to consider Meraz-Hernandez’s contentions as to the

merits of the agency’s discretionary denial of his application for cancellation of

removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Vilchez v. Holder, 682 F.3d 1195, 1198

(9th Cir. 2012) (court lacks jurisdiction to review “the merits of a discretionary

decision to deny cancellation of removal” but retains jurisdiction to review legal

and constitutional questions). Meraz-Hernandez’s contentions that the agency

erred in its analysis of his cancellation of removal claim, misstated facts, or

otherwise denied him due process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (requiring error to prevail on a due process claim); see also Torres-

Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015) (“In the context of the

BIA’s discretionary decisions, we have noted that ‘it is proper [for the BIA] to look

to probative evidence outside the record of conviction in inquiring as to the

circumstances surrounding the commission of [a] crime in order to determine

whether a favorable exercise of discretion is warranted.’” (internal citation

omitted)).

The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 19-72996