NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESTEFANIA SALGADO ESTRADA, No. 18-73072 Petitioner, Agency No. A200-973-688 v.
MERRICK B. GARLAND, Attorney MEMORANDUM* 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.
Petitioner Estefania Salgado Estrada appeals the ruling of the Board of
Immigration Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”)1
finding that she was removable under 8 U.S.C. § 1182(a)(6), and that she was
ineligible for cancellation of removal due to her conviction of a crime involving
* 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. 1 The BIA and IJ are referred to collectively as “the Agency.” moral turpitude under California Penal Code Section 472 (“Section 472”). Salgado
Estrada appeals on five grounds, each of which are addressed in turn.
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).
Factual findings of the Agency are “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We
deny Salgado Estrada’s petition for review.
1. Removability. Salgado Estrada argues that the Agency erred when it
found her removable as “inadmissible” under 8 U.S.C. § 1182(a)(6). Salgado
Estrada has the burden to establish “by clear and convincing evidence” that she is
“lawfully present in the United States pursuant to a prior admission.” Id. at §
1229a(c)(2).
Salgado Estrada primarily relied on two pieces of evidence to support her
argument: a two-page declaration, in which she purported to recall her memories of
crossing the border as a four-year-old, and a photocopy of her border crossing card.
Salgado Estrada also relied on additional evidence, consisting of the initial Notice
to Appear (“NTA”), which charged Salgado Estrada as a nonimmigrant who
overstayed her conditions of admission under 8 U.S.C. § 1227(a)(1)(c), and a DHS
calendar entry, which indicated that Salgado Estrada had a second Alien Registration
Number, and that a border card had been issued.
2 The Agency found that Salgado Estrada’s declaration was unreliable, because
her attorney conceded that Salgado Estrada had no memory of her February 1997
entry and that she based her declaration on second-hand knowledge from relatives.
The Agency similarly discounted the border crossing card, as the photocopy was
faint and illegible, and had two unexplained dates. Similarly, the initial NTA and
Calendar Entry do not constitute “clear and convincing evidence” of a lawful
admission. 8 U.S.C. § 1229a(c)(2). Our review of the evidence suggests that a
“reasonable adjudicator” would not be “compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B).
2. 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),
1227(a)(2). 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 (alteration omitted) (quoting Castrijon-Garcia v. Holder, 704 F.3d
1205, 1208 (9th Cir. 2013), overruled on other grounds by Ceron v. Holder, 747
F.3d 773, 782 n.2 (9th Cir. 2013) (en banc)); see also Descamps v. United States,
570 U.S. 254, 257 (2013).
3 As recently explained 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 Section 472 conviction based on possession. Accordingly, the BIA was correct
that Salgado Estrada’s conviction under Section 472 was for a crime involving moral
turpitude.
3. California Penal Code § 18.5. An alien is ineligible for cancellation
of removal if she is convicted of a crime of moral turpitude and “is convicted of a
crime for which a sentence of one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(II). Salgado Estrada argues that her conviction under Section 472
does not qualify as a “crime for which a sentence of one year or longer may be
imposed”—even though, at the time she was convicted, Section 472 carried a
maximum sentence of one year. In 2015, California enacted Section 18.5, which
retroactively established that “[e]very offense which is prescribed by any law of the
state to be punishable by imprisonment in a county jail up to or not exceeding one
year shall be punishable by imprisonment in a county jail for a period not to exceed
364 days.” Cal. Penal Code § 18.5. Accordingly, Salgado Estrada argues that the
IJ should have applied Section 18.5 retroactively and considered her conviction to
have a maximum sentence of 364 days, rather than one year. Our holding in
Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021) squarely forecloses this
argument, and we decline to revisit that decision here. Accordingly, we conclude
4 that the Agency did not err in finding that Salgado Estrada’s conviction under
Section 472 carried a maximum sentence of one year, foreclosing her eligibility for
cancellation of removal relief.
4. “Petty Offense” Exception. 8 U.S.C. § 1182(a)(2)(A) contains an
exception to the general rule that “any alien convicted of . . . a crime involving moral
turpitude . . . is inadmissible.” Id. § 1182(a)(2)(A)(i). The exception applies “to an
alien who committed only one crime if . . . the maximum penalty possible for the
crime of which the alien was convicted . . . did not exceed imprisonment for one
year and, if the alien was convicted of such crime, the alien was not sentenced to a
term of imprisonment in excess of 6 months.” Id. at § 1182(a)(2)(A)(ii). Salgado
Estrada argues that because the maximum sentence for her Section 472 conviction
was only one year, and her term of imprisonment was less than 6 months, she is
eligible for cancellation of removal relief under the “petty offense” exception.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESTEFANIA SALGADO ESTRADA, No. 18-73072 Petitioner, Agency No. A200-973-688 v.
MERRICK B. GARLAND, Attorney MEMORANDUM* 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.
Petitioner Estefania Salgado Estrada appeals the ruling of the Board of
Immigration Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”)1
finding that she was removable under 8 U.S.C. § 1182(a)(6), and that she was
ineligible for cancellation of removal due to her conviction of a crime involving
* 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. 1 The BIA and IJ are referred to collectively as “the Agency.” moral turpitude under California Penal Code Section 472 (“Section 472”). Salgado
Estrada appeals on five grounds, each of which are addressed in turn.
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).
Factual findings of the Agency are “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We
deny Salgado Estrada’s petition for review.
1. Removability. Salgado Estrada argues that the Agency erred when it
found her removable as “inadmissible” under 8 U.S.C. § 1182(a)(6). Salgado
Estrada has the burden to establish “by clear and convincing evidence” that she is
“lawfully present in the United States pursuant to a prior admission.” Id. at §
1229a(c)(2).
Salgado Estrada primarily relied on two pieces of evidence to support her
argument: a two-page declaration, in which she purported to recall her memories of
crossing the border as a four-year-old, and a photocopy of her border crossing card.
Salgado Estrada also relied on additional evidence, consisting of the initial Notice
to Appear (“NTA”), which charged Salgado Estrada as a nonimmigrant who
overstayed her conditions of admission under 8 U.S.C. § 1227(a)(1)(c), and a DHS
calendar entry, which indicated that Salgado Estrada had a second Alien Registration
Number, and that a border card had been issued.
2 The Agency found that Salgado Estrada’s declaration was unreliable, because
her attorney conceded that Salgado Estrada had no memory of her February 1997
entry and that she based her declaration on second-hand knowledge from relatives.
The Agency similarly discounted the border crossing card, as the photocopy was
faint and illegible, and had two unexplained dates. Similarly, the initial NTA and
Calendar Entry do not constitute “clear and convincing evidence” of a lawful
admission. 8 U.S.C. § 1229a(c)(2). Our review of the evidence suggests that a
“reasonable adjudicator” would not be “compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B).
2. 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),
1227(a)(2). 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 (alteration omitted) (quoting Castrijon-Garcia v. Holder, 704 F.3d
1205, 1208 (9th Cir. 2013), overruled on other grounds by Ceron v. Holder, 747
F.3d 773, 782 n.2 (9th Cir. 2013) (en banc)); see also Descamps v. United States,
570 U.S. 254, 257 (2013).
3 As recently explained 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 Section 472 conviction based on possession. Accordingly, the BIA was correct
that Salgado Estrada’s conviction under Section 472 was for a crime involving moral
turpitude.
3. California Penal Code § 18.5. An alien is ineligible for cancellation
of removal if she is convicted of a crime of moral turpitude and “is convicted of a
crime for which a sentence of one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(II). Salgado Estrada argues that her conviction under Section 472
does not qualify as a “crime for which a sentence of one year or longer may be
imposed”—even though, at the time she was convicted, Section 472 carried a
maximum sentence of one year. In 2015, California enacted Section 18.5, which
retroactively established that “[e]very offense which is prescribed by any law of the
state to be punishable by imprisonment in a county jail up to or not exceeding one
year shall be punishable by imprisonment in a county jail for a period not to exceed
364 days.” Cal. Penal Code § 18.5. Accordingly, Salgado Estrada argues that the
IJ should have applied Section 18.5 retroactively and considered her conviction to
have a maximum sentence of 364 days, rather than one year. Our holding in
Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021) squarely forecloses this
argument, and we decline to revisit that decision here. Accordingly, we conclude
4 that the Agency did not err in finding that Salgado Estrada’s conviction under
Section 472 carried a maximum sentence of one year, foreclosing her eligibility for
cancellation of removal relief.
4. “Petty Offense” Exception. 8 U.S.C. § 1182(a)(2)(A) contains an
exception to the general rule that “any alien convicted of . . . a crime involving moral
turpitude . . . is inadmissible.” Id. § 1182(a)(2)(A)(i). The exception applies “to an
alien who committed only one crime if . . . the maximum penalty possible for the
crime of which the alien was convicted . . . did not exceed imprisonment for one
year and, if the alien was convicted of such crime, the alien was not sentenced to a
term of imprisonment in excess of 6 months.” Id. at § 1182(a)(2)(A)(ii). Salgado
Estrada argues that because the maximum sentence for her Section 472 conviction
was only one year, and her term of imprisonment was less than 6 months, she is
eligible for cancellation of removal relief under the “petty offense” exception.
This argument fails. The “petty offense” exception is not applicable where
the relief sought is cancellation of removal under 8 U.S.C. § 1229b. This Court has
held that a “conviction for an offense described in § 1227(a)(2)”—which includes,
among other crimes, crimes of moral turpitude like Salgado Estrada’s conviction
under Section 472—“may meet the requirements of the petty offense exception in
§ 1182(a)(2)” and still be “a bar to cancellation of removal.” Vasquez-Hernandez v.
Holder, 590 F.3d 1053, 1056 (9th Cir. 2010). Accordingly, the Agency correctly
5 rejected Salgado Estrada’s argument that she was eligible for cancellation of
removal under the “petty offense” exception.
5. Temporal Conviction Requirement under § 1227(a)(2).
8 U.S.C. § 1227(a)(2) makes deportable any alien who “is convicted of a crime
involving moral turpitude committed within five years . . . after the date of
admission.” Salgado Estrada argues that because her conviction under Section 472
occurred more than five years after she was admitted to the United States, her
conviction cannot serve as a basis for ineligibility for cancellation of removal. This
argument, too, is foreclosed by our precedent. In Ortega-Lopez v. Barr, 978 F.3d
680 (9th Cir. 2020), this Court accorded deference to the BIA’s interpretation that
the cross reference in 8 U.S.C. § 1229b, the cancellation of removal statute, to an
“offense described under . . . § 1227(a)(2)” incorporates only the language
identifying the criminal offense, and not the limiting requirement that the offense is
committed within five years of the alien entering the United States. Id. at 690-92.
PETITION FOR REVIEW DENIED.