Gonzalez Hernandez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2023
• Docket: 21-1038
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO JAVIER GONZALEZ No. 21-1038 HERNANDEZ, Agency No. A044-367-299 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 12, 2023** Pasadena, California

Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO, District Judge.***

Francisco Javier Gonzalez Hernandez (Gonzalez Hernandez), a native and

citizen of Mexico, appeals the Board of Immigration Appeal’s (BIA) decision

* 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 James Donato, United States District Judge for the Northern District of California, sitting by designation. upholding the Immigration Judge’s (IJ) determination that he is removable as

charged and ineligible for cancellation of removal because his prior conviction

under California Penal Code (CPC) § 508 is both a categorical crime involving

moral turpitude (CIMT) and an aggravated felony offense. This Court has

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.

1. Gonzalez Hernandez argues that although he was convicted under

California’s embezzlement statute, the IJ and BIA (agency) should have conducted

a CIMT analysis under California’s indivisible theft statute because embezzlement,

larceny, and false pretenses are alternative means of committing the single offense

of theft. See Lopez-Valencia v. Lynch, 798 F.3d 863, 869, 871 (9th Cir. 2015);

People v. Vidana, 1 Cal. 5th 632, 648 (2016). The Court need not resolve this

question because the conviction constitutes a CIMT under either statute.

This Court has consistently held that a conviction for theft under CPC § 484

constitutes a CIMT. Ballinas-Lucero v. Garland, 44 F.4th 1169, 1173 (9th Cir.

2022); Silva v. Garland, 993 F.3d 705, 716–17 (9th Cir. 2021); Castillo-Cruz v.

Holder, 581 F.3d 1154, 1160 (9th Cir. 2009); Flores Juarez v. Mukasey, 530 F.3d

1020, 1022 (9th Cir. 2008). And because embezzlement under CPC § 508 requires

an intent to defraud, a conviction analyzed under this statute would necessarily

constitute a CIMT. See Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1120 (9th Cir.

2020) (“a state conviction qualifies as a fraudulent CIMT when the intent to

2 21-1038 defraud is explicit in the statutory definition of the crime or implicit in the nature

of the crime”); People v. Sisuphan, 181 Cal. App. 4th 800, 813 (2010)

(“Fraudulent intent is an essential element of embezzlement.”).

2. Gonzalez Hernandez argues that his embezzlement conviction is not an

aggravated felony because it does not match the definition of theft under 8 U.S.C.

§ 1101(a)(43)(G). But the agency never made this finding. Instead, the agency

found that Gonzalez Hernandez’s conviction matched the definition of a fraud

offense under 8 U.S.C. § 1101(a)(43)(M). Because Gonzalez Hernandez fails to

address the actual federal provision the agency relied upon, we find this issue

waived. See Turtle Island Restoration Network v. U.S. Dep’t of Com., 672 F.3d

1160, 1166 n.8 (9th Cir. 2012).

3. Finally, Gonzalez Hernandez argues that remand is warranted under Pereida

v. Wilkinson, 141 S. Ct. 754 (2021) because he can now “establish eligibility for

relief from removal through his testimony.” He fails to establish how his

testimony would be relevant. He does not contest that his victims suffered more

than $10,000 in losses or that he was convicted of a theft-related offense under

California law. We therefore find remand unwarranted.

The motion for a stay of removal is denied as moot. The temporary stay of

removal remains in effect until issuance of the mandate.

PETITION DENIED.

3 21-1038