Erika Loza-Rodriguez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2020
• Docket: 18-70451
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIKA PILAR LOZA-RODRIGUEZ, No. 18-70451

Petitioner, Agency No. A088-746-763

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

Respondent.

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

Submitted October 14, 2020** San Francisco, California

Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,*** District Judge.

Erika Pilar Loza-Rodriguez challenges the Board of Immigration Appeals’

determination that she is not eligible for the petty offense exception under 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). *** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. § 1182(a)(2)(A)(ii)(II). We have jurisdiction under 8 U.S.C. § 1252 and review the

legal determinations regarding a noncitizen’s eligibility for cancellation of removal

de novo. Camacho-Cruz v. Holder, 621 F.3d 941, 942 n.1 (9th Cir. 2010). We deny

the petition for review.

1. Factual Background. Loza-Rodriguez is a Mexican citizen who entered

the United States without inspection. In June 2009, she pleaded guilty to attempted

battery with substantial bodily harm, a gross misdemeanor under Nevada law. The

court imposed an 11-month suspended sentence with 18 months’ probation. She

completed the sentence without incident and ultimately served no jail time. In

January 2013, the Department of Homeland Security initiated removal proceedings

against Loza-Rodriguez for her unlawful presence in the United States. Loza-

Rodriguez applied for cancellation of removal, arguing that her prior conviction

satisfied the petty offense exception.

2. Petty offense exception. Cancellation of removal for certain nonpermanent

residents is available when the applicant can show she has been physically present

in the United States for a continuous period of at least 10 years, has been a person

of good moral character during that time frame, has not been convicted of certain

specified offenses, and has established that removal would result in exceptional and

extremely unusual hardship to the noncitizen’s spouse, parent, or child who is a

United States citizen or lawful permanent resident. 8 U.S.C. §1229b(b)(1). The

2 Immigration Judge determined Loza-Rodriguez was not eligible for cancellation of

removal because she had been convicted of a crime involving moral turpitude and

that she did not qualify for the petty offense exception.

Under the petty offense exception, noncitizens who have committed only one

crime involving moral turpitude are not deemed inadmissible when “the maximum

penalty possible for the crime of which the [noncitizen] was convicted . . . did not

exceed imprisonment for one year and, if the [noncitizen] was convicted of such

crime, the [noncitizen] was not sentenced to a term of imprisonment in excess of 6

months (regardless of the extent to which the sentence was ultimately executed).” 8

U.S.C. § 1182(a)(2)(A)(ii)(II). Under the statute’s plain language—“regardless of

the extent to which the sentence was ultimately executed”—Loza-Rodriguez does

not qualify for the exception because the sentence exceeded six months.

Relying on United States v. Gonzalez, 506 F.3d 940, 944–45 (9th Cir. 2007)

(en banc), Loza-Rodriguez contends that because this court has held that a suspended

sentence does not constitute a “term of imprisonment” for purposes of United States

Sentencing Guidelines § 4A1.2(c)(1), her 11-month suspended sentence should not

count in the present context for purposes of removability. This argument is

unavailing in this context, where the statutory language is clear. Moreover, Congress

has specifically stated what it means by “term of imprisonment” in reference to

inadmissibility determinations. See 8 U.S.C. § 1101(a)(48)(B) (“Any reference to a

3 term of imprisonment or a sentence with respect to an offense is deemed to include

the period of incarceration or confinement ordered by a court of law regardless

of any suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.”) (emphasis added).

Petition for review is DENIED.