Eduardo Sandoval Venegas v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2020
• Docket: 16-73590
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDUARDO SANDOVAL VENEGAS, No. 16-73590

Petitioner, Agency No. A092-929-591

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 11, 2020** Pasadena, California

Before: BYBEE, COLLINS, and BRESS, Circuit Judges.

Eduardo Sandoval Venegas petitions for review of a decision by the Board of

Immigration Appeals (BIA) dismissing his appeal and determining that he (1) is

ineligible for relief under former Section 212(c) of the Immigration and Nationality

* 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). Act (INA), 8 U.S.C. § 1182(c) (1988) (repealed 1996)1; (2) did not receive

ineffective assistance of counsel when his former attorney conceded the charges of

removability against him; and (3) was ineligible for alternative forms of relief under

the INA. Because Venegas’ petition presents constitutional claims and questions of

law, we have jurisdiction to review such claims under 8 U.S.C. § 1252(a)(2)(D). We

now deny the petition.

1. Venegas primarily challenges the BIA’s determination that he is

ineligible for a waiver of inadmissibility under former § 212(c), which is only

available to aliens “lawfully admitted for permanent residence.” 8 U.S.C. § 1182(c)

(repealed 1996). Although Venegas’ status was adjusted to permanent resident in

September 1990, in August 1990, Venegas was convicted of possession of marijuana

for sale under California Health & Safety Code § 11359 (1990).

That felony conviction disqualified Venegas for adjustment to permanent

resident status under 8 U.S.C. §§ 1255a(b)(1)(C)(i) & (d)(2)(B)(ii)(I), because it

constitutes a controlled substance violation under 8 U.S.C. § 1182(a)(2)(A)(i)(II).

See Macias-Carreon v. Holder, 716 F.3d 1286, 1288 (9th Cir. 2013). Accordingly,

1 Former § 212(c) was narrowed by the Antiterrorism and Effective Death Penalty Act and then repealed by the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. See INS v. St. Cyr, 533 U.S. 289, 297 (2001). But the Supreme Court has held that § 212(c) relief continues to be available for persons, such as Venegas, who pleaded guilty to removable offenses before those laws became effective. Id. at 326.

2 under our precedent Venegas was not “lawfully admitted for permanent residence”

for purposes of § 212(c). As we held in Segura v. Holder, 605 F.3d 1063 (9th Cir.

2010), “[a]lthough an alien may have been admitted for permanent residence, he has

not been lawfully admitted for permanent residence if he was precluded from

obtaining permanent resident status due to an inability to meet the prerequisites.”

Id. at 1066 (emphasis in original). Segura thus forecloses Venegas’ claim for relief

under former § 212(c).

Venegas’ reliance upon Gallegos-Vasquez v. Holder, 636 F.3d 1181 (9th Cir.

2011), and Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) (en banc), is

unavailing. In those cases, the petitioners were afforded lawful temporary resident

status under the Special Agricultural Workers (SAW) program, which automatically

adjusts an alien’s status to lawful permanent resident status without requiring a

showing of admissibility. See 8 U.S.C. § 1160(a)(2). But Venegas was not admitted

under SAW, and his inadmissibility precluded adjustment to lawful permanent

resident status, thus rendering him ineligible for § 212(c) relief. See Segura, 605

F.3d at 1066–67.

2. Venegas’ ineffective assistance of counsel and related due process

claims fail because he cannot show he suffered “substantial prejudice” when his

former counsel conceded the charges of removability. See, e.g., Lara-Torres v.

Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004), amended sub nom. Lara-Torres v.

3 Gonzales, 404 F.3d 1105 (9th Cir. 2005) (noting that ineffective assistance of

counsel claims in removal proceedings require a showing of “substantial prejudice,

which is essentially a demonstration that the alleged violation affected the outcome

of the proceedings”) (quotation omitted).

The record establishes that Venegas was convicted under California Penal

Code § 211. We have held that such an offense categorically qualifies as a generic

theft offense under 8 U.S.C. § 1101(a)(43)(G), and that it is therefore an aggravated

felony where, as here, a term of imprisonment of at least one year was imposed. See

United States v. Martinez-Hernandez, 932 F.3d 1198, 1205–07 (9th Cir. 2019).

Venegas was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

3. The BIA properly rejected Venegas’ requests for relief under INA

§§ 212(k) and 237(a)(1)(H), as neither provision excuses inadmissibility for criminal

violations. See 8 U.S.C. § 1182(k) (applying only to aliens who are inadmissible

under 8 U.S.C. §§ 1182(a)(5)(A) & (7)(A)(i) but are “otherwise admissible”);

§ 1227(a)(1)(H) (applying only to aliens who are inadmissible under 8 U.S.C.

§ 1182(a)(6)(C)(i) but are “otherwise admissible”).

We have carefully reviewed Venegas’ remaining arguments and conclude

they are without merit. The petition for review is therefore DENIED.