Donaciano Medellin-Delgado v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2022
• Docket: 15-73188
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DONACIANO MEDELLIN-DELGADO, No. 15-73188

Petitioner, Agency No. A094-957-863

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted October 22, 2021 Pasadena, California

Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District Judge.

The Board of Immigration Appeals (BIA) denied Petitioner Donaciano

Medellin-Delgado’s application for cancellation of removal concluding that his

California forgery conviction is a crime involving moral turpitude that disqualifies

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. him for relief. Medellin-Delgado seeks review arguing that intent to defraud was not

a required element of his forgery conviction, meaning that his conviction is not a

categorical crime involving moral turpitude. Alternatively, he urges us to sua sponte

call this case en banc to overturn Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th

Cir. 2021), which forecloses his argument that the 2015 retroactive amendment to

California Penal Code § 18.5 makes his conviction punishable by less than one year

for purposes of the application of 8 U.S.C. § 1229b(b)(1)(C).

We review questions of law, including whether a crime involves moral

turpitude, de novo, see Barbosa v. Barr, 926 F.3d 1053, 1057 (9th Cir. 2019), and

we deny Medellin-Delgado’s petition for review. We also decline his invitation to

sua sponte call this case en banc.

1. Crime Involving Moral Turpitude. An alien who has been convicted of a

crime involving moral turpitude that is punishable by one year or more of

imprisonment is ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C).

We apply the categorical approach to determine whether a crime involves moral

turpitude by “identify[ing] the elements of the statute of conviction” and

“compar[ing] [them] to the generic definition of a crime involving moral turpitude

[to] decide whether the conviction meets that definition.” Barbosa, 926 F.3d at 1057

(quotation marks and citation omitted) (third alteration in original); see also

Descamps v. United States, 570 U.S. 254, 257 (2013).

2 As we explained in our contemporaneous opinion in Vasquez-Borjas v.

Garland, __ F.4th __ (9th Cir. 2022), California law forecloses the argument that

intent to defraud is not an element of a California Penal Code § 472 (Section 472)

conviction based on possession. In People v. Castellanos, the California Court of

Appeal held that Section 472 requires an intent to defraud and that possession of a

forged document “affords an inference” that the possessor of the forged document

intended to deceive someone. 110 Cal. App. 4th 1489, 1493–94 (2003). The

applicable California pattern jury instructions also direct that all convictions under

Section 472 require proof of intent to defraud. CALJIC 15.00; CALCRIM No. 1926.

Crimes “involving fraud” also involve moral turpitude, see Robles-Urrea v. Holder,

678 F.3d 702, 708 (9th Cir. 2012), and we have held that fraudulent intent is an

element of the generic definition of forgery, Vizcarra-Ayala v. Mukasey, 514 F.3d

870, 874 (9th Cir. 2008). Accordingly, the BIA was correct that Medellin-Delgado’s

forgery conviction was for a crime involving moral turpitude.

2. Velasquez-Rios v. Wilkinson. Medellin-Delgado concedes that our

decision in Velasquez-Rios forecloses his argument that his conviction no longer

makes him ineligible for cancellation of removal because a retroactive change to

California law made his conviction punishable by less than a year. See 8 U.S.C.

§ 1229b(b)(1)(C). But he argues that we should sua sponte call this case en banc to

overturn Velasquez-Rios. A petition for rehearing en banc was filed in Velasquez-

3 Rios and circulated to the full court and “no judge . . . requested a vote on whether

to rehear the matter.” 988 F.3d at 1083. We, therefore, can infer that the court does

not believe that en banc reconsideration of Velasquez-Rios is warranted, and we

decline Medellin-Delgado’s invitation to revisit the issue sua sponte.

PETITION FOR REVIEW DENIED.