Jaime Cortez v. Eric Holder, Jr.

584 F. App'x 493

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2014
• Docket: 10-71532
• Status: Unpublished

Opinion

MEMORANDUM **

Jaime Ernesto Cortez petitions for review of the Board of Immigration Appeals’ final order of removal. We deny the petition for review.

1. Sexual battery in violation of California Penal Code § 243.4(a) is a crime involving moral turpitude that renders Cortez removable under 8 U.S.C. § 1227(a)(2) (A) (i). See Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir.2013) (California Penal Code § 243.4(e) is a crime involving moral turpitude); People v. King, 183 Cal.App.4th 1281, 108 Cal.Rptr.3d 333, 370 (2010) (“Misdemeanor sexual battery [§ 243.4(e) ] is a lesser included offense of sexual battery by restraint [§ 243.4(a) ].”).

2. Cortez’s conviction does not qualify for the petty offense exception to inadmissibility in 8 U.S.C. § 1182(a)(2)(A)(ii)(II). California Penal Code § 243.4(a) permits a maximum possible sentence of greater than one year. Cortez was sentenced to 300 days’ imprisonment as a condition of probation. Cortez’s sentence was not reduced or vacated for immigration purposes. The California state court denied Cortez’s motion to reduce Cortez’s sentence to less than six months’ imprisonment. The state court’s reduction of Cortez’s conviction to a misdemeanor does not mean that Cortez’s sentence was automatically reduced to six months or less. See Cal.Penal Code § 19 (allowing misdemeanors to be punished by sentences greater than six months if permitted by law); Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.2014) (en banc). Further, California Penal Code § 1203.4 does not remove the federal immigration consequences of a conviction and sentence. Ramirez-Castro v. I.N.S., 287 F.3d 1172, 1175 (9th Cir.2002).

3.We have already held that California Penal Code § 243.4(a) is a “crime of violence” under the immigration act. Lisbey v. Gonzales, 420 F.3d 930, 933-34 (9th Cir.2005). Thus, the Board of Appeals did not err in finding that California Penal Code § 243.4 is a “violent or dangerous crime” for purposes of 8 C.F.R. § 1212.7(d).

The petition for review is DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.