Jose Mercado Ramirez v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 14-72415
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE JESUS MERCADO RAMIREZ, No. 14-72415

Petitioner, Agency No. A201-034-249

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted September 10, 2018** San Francisco, California

Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.

Jose Jesus Mercado Ramirez petitions for review of his removal proceedings

in the Board of Immigration Appeals (Board). We have jurisdiction under 28

U.S.C. § 1252, and we deny the petition.

Mercado argues that the Board erred by retroactively applying In re Leal, 26

* 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). I. & N. Dec. 20, 27 (B.I.A. 2012) (Leal I) to conclude that his Arizona conviction

for felony endangerment was a crime involving moral turpitude, that we should not

apply our decision in Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014) (Leal II)

to conclude that Arizona endangerment is a crime involving moral turpitude for

similar reasons, and that the definition of “crime involving moral turpitude” is

unconstitutionally vague as applied to non-fraudulent crimes. Mercado’s first and

third arguments our foreclosed by our decision in Olivas-Mottas v. Whitaker, __

F.3d __, No. 14-70543 (9th Cir. __, 2018). As to Mercado’s second argument, we

did not decide in Olivas-Mottas whether Leal II changed the law and thus had a

retroactive effect. But we do not need to decide that issue in this case because

Leal I did not change the law, and Mercado has not argued to us that the Board

erred by applying Leal I for any reason other than retroactivity and vagueness.

PETITION DENIED.

2 FILED Mercado Ramirez v. Whitaker, No. 14-72415 DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS WATFORD, Circuit Judge, dissenting:

For the reasons stated in my dissent in Olivas-Motta v. Whitaker, __ F.3d __,

No. 14-70543 (9th Cir. 2018), I would grant Jose Jesus Mercado Ramirez’s

petition for review and remand so that the Board of Immigration Appeals can

analyze the status of his conviction for reckless endangerment under the law as it

stood in 2001, when he pleaded guilty.