Jose Hernandez Rojas v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2019
• Docket: 16-70161
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED OCT 29 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE FILEMON HERNANDEZ-ROJAS, No. 16-70161

Petitioner, Agency No. A077-101-481

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

Respondent.

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

Submitted October 23, 2019**

Before: CALLAHAN and KLEINFELD, Circuit Judges, and RESTANI,*** Judge.

Jose Filemon Hernandez-Rojas, a native and citizen of Mexico, petitions for

review of the board of Immigration Appeals’ decision dismissing his appeal from

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. an immigration judge’s order denying cancellation of removal. We have

jurisdiction under 8 U.S.C. § 1252. We review de novo whether a conviction

constitutes a crime involving moral turpitude. Tall v. Mukasey, 517 F.3d 1115,

1119 (9th Cir. 2008). We deny the petition for review.

First, we are not persuaded by the Government’s argument that Hernandez-

Rojas failed to sufficiently raise his claim before the BIA. Although we may

review a final order of removal only if “the alien has exhausted all administrative

remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), the exhaustion

doctrine is not employed in a formalistic manner and it does not demand perfect

precision. Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). When, as

here, an issue was clearly raised before the BIA and the BIA decides the issue, that

issue is exhausted, even if the petitioner makes slightly different or more expansive

arguments in support of that issue before this court. See Vizcarra-Ayala v.

Mukasey, 514 F.3d 870, 873 (9th Cir. 2008).

The BIA did not err in determining that Hernandez-Rojas’ convictions under

California Penal Code § 647(b) are crimes involving moral turpitude, and therefore

that he is ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C)

(barring certain exceptions, aliens convicted of crimes involving moral turpitude

are not eligible for cancellation of removal). We are not persuaded by Hernandez-

Rojas’ contention that precedent establishing his convictions are crimes involving 2 moral turpitude do not control. See Rohit v. Holder, 670 F.3d 1085, 1091 (9th Cir.

2012) (holding that solicitation of prostitution under California Penal Code

§647(b) constitutes a crime involving moral turpitude).

As a three-judge panel, we lack authority to overrule Rohit. Avagyan v.

Holder, 646 F.3d 672, 677 (9th Cir. 2011).

PETITION FOR REVIEW DENIED.