NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUVENAL GARCIA GONZALEZ, AKA No. 19-71043 Juvanal Gonzalez, Agency No. A092-736-474 Petitioner,
v.
MERRICK B. GARLAND, Attorney MEMORANDUM* General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 4, 2021** San Francisco, California
Before: BALDOCK,*** WARDLAW, and BERZON, Circuit Judges.
Juvenal Garcia Gonzalez petitions for the review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from the Immigration Judge’s (“IJ”)
* 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 Bobby R. Baldock, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 1 decision denying (1) his motion to terminate and (2) his applications for a waiver of
inadmissibility and adjustment of status. Exercising jurisdiction to the extent
allowed under 8 U.S.C. § 1252(a)(2)(D), we deny in part and dismiss in part the
petition for review.
1. Petitioner first contends the BIA lacked jurisdiction over the removal
proceedings because the Notice to Appear (“NTA”) did not specify the name of the
court in which the NTA was to be filed. We review the sufficiency of the NTA de
novo. Kohli v. Gonzalez, 473 F.3d 1061, 1065 (9th Cir. 2007). Omitting the time,
date, or place from an NTA does not deprive the immigration court of jurisdiction.
See Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020). Accordingly, we
deny Petitioner’s claim that the BIA lacked jurisdiction over his removal
proceedings.
2. Petitioner next argues the BIA erred in concluding that his assault
conviction under California Penal Code § 245(a)(2) constitutes an aggravated felony
crime of violence. We review de novo whether an offense qualifies as an aggravated
felony crime of violence. See United States v. Grajeda, 581 F.3d 1186, 1188 (9th
Cir. 2009).
We have held that a conviction “under California Penal Code § 245(a)(2) is
categorically a ‘crime of violence’ and an ‘aggravated felony’ for immigration
purposes.” United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (per
2 curiam). While Petitioner contends that our decision in Heron-Salinas is clearly
irreconcilable with Moncrieffe v. Holder, 569 U.S. 184 (2013), we have since
reaffirmed our conclusion that California assault is a categorical crime of violence.
See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018).
Though Vasquez-Gonzalez addressed California Penal Code § 245(a)(1), the
difference between § 245(a)(1) and (a)(2) is immaterial to the “crime of violence”
analysis. The two subsections “proscribe the same conduct, the only difference
being the type of weapon involved.” Heron-Salinas, 566 F.3d at 899. We therefore
deny Petitioner’s claim that his assault conviction under California Penal Code §
245(a)(2) does not constitute an aggravated felony crime of violence.
3. Petitioner also argues that the “violent or dangerous crime” distinction
provided for in 8 C.F.R. § 1212.7(d) and applied to his application for a waiver of
inadmissibility is unconstitutionally vague. We review constitutional claims arising
from the BIA’s decision de novo. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.
2003).
The attorney general may grant a discretionary waiver of inadmissibility if an
alien can prove his removal would result in extreme hardship to a spouse, parent, or
child, if those qualifying relatives are United States citizens or lawfully admitted
permanent residents. 8 U.S.C. §.1182(h)(1)(B). But when an alien has committed
a violent or dangerous crime a heightened standard applies. See 8 C.F.R. §
3 1212.7(d). In those cases, the attorney general will only exercise favorable
discretion in “extraordinary circumstances,” including when the alien clearly
demonstrates that the denial of the application would result in “exceptional and
extremely unusual hardship.” 8 C.F.R. § 1212.7(d).
Petitioner argues 8 C.F.R. § 1212.7(d) is unconstitutionally vague under
Johnson v. United States, 576 U.S. 591 (2015), because it applies a heightened
standard for “violent or dangerous crimes.” In Johnson, the Supreme Court held the
residual clause of the Armed Career Criminal Act—which designated a “violent
felony” as any felony that “otherwise involves conduct that presents a serious risk
of physical injury to another”—was unconstitutionally vague. 576 U.S. at 594; see
id. at 601–02. The Court explained that the residual clause violates due process
because it requires a judge to imagine an “ordinary case” of a particular crime and
then decide if that ordinary version of the crime presented a serious risk of physical
injury. Id. at 596. “It is one thing,” the Court clarified, “to apply an imprecise
‘serious potential risk’ standard to real-world facts; it is quite another to apply it to
a judge-imagined abstraction.” Id. at 598.
Johnson provides no support for Petitioner’s argument. Unlike the categorical
approach required by the residual clause in Johnson, the BIA applies a circumstance-
specific approach when deciding whether an offense is violent or dangerous under 8
C.F.R. § 1212.7(d). That is, the BIA considers the alien’s actual conduct rather than
4 hypothesizing about an “ordinary case.” See Johnson, 576 U.S. at 596. Again, “[t]he
residual clause failed not because it adopted a ‘serious potential risk’ standard but
because applying that standard under the categorical approach required courts to
assess the hypothetical risk posed by an abstract generic version of the offense.”
Welch v. United States, 136 S. Ct. 1257, 1262 (2016). Because the BIA considers
whether the alien’s actual conduct was violent or dangerous (as opposed to
imagining a hypothetical, ordinary case of a crime), we deny Petitioner’s claim that
the heightened standard used in 8 C.F.R. § 1212.7(d) is unconstitutionally vague.
4.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JUVENAL GARCIA GONZALEZ, AKA No. 19-71043 Juvanal Gonzalez, Agency No. A092-736-474 Petitioner,
v.
MERRICK B. GARLAND, Attorney MEMORANDUM* General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 4, 2021** San Francisco, California
Before: BALDOCK,*** WARDLAW, and BERZON, Circuit Judges.
Juvenal Garcia Gonzalez petitions for the review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from the Immigration Judge’s (“IJ”)
* 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 Bobby R. Baldock, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 1 decision denying (1) his motion to terminate and (2) his applications for a waiver of
inadmissibility and adjustment of status. Exercising jurisdiction to the extent
allowed under 8 U.S.C. § 1252(a)(2)(D), we deny in part and dismiss in part the
petition for review.
1. Petitioner first contends the BIA lacked jurisdiction over the removal
proceedings because the Notice to Appear (“NTA”) did not specify the name of the
court in which the NTA was to be filed. We review the sufficiency of the NTA de
novo. Kohli v. Gonzalez, 473 F.3d 1061, 1065 (9th Cir. 2007). Omitting the time,
date, or place from an NTA does not deprive the immigration court of jurisdiction.
See Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020). Accordingly, we
deny Petitioner’s claim that the BIA lacked jurisdiction over his removal
proceedings.
2. Petitioner next argues the BIA erred in concluding that his assault
conviction under California Penal Code § 245(a)(2) constitutes an aggravated felony
crime of violence. We review de novo whether an offense qualifies as an aggravated
felony crime of violence. See United States v. Grajeda, 581 F.3d 1186, 1188 (9th
Cir. 2009).
We have held that a conviction “under California Penal Code § 245(a)(2) is
categorically a ‘crime of violence’ and an ‘aggravated felony’ for immigration
purposes.” United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (per
2 curiam). While Petitioner contends that our decision in Heron-Salinas is clearly
irreconcilable with Moncrieffe v. Holder, 569 U.S. 184 (2013), we have since
reaffirmed our conclusion that California assault is a categorical crime of violence.
See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018).
Though Vasquez-Gonzalez addressed California Penal Code § 245(a)(1), the
difference between § 245(a)(1) and (a)(2) is immaterial to the “crime of violence”
analysis. The two subsections “proscribe the same conduct, the only difference
being the type of weapon involved.” Heron-Salinas, 566 F.3d at 899. We therefore
deny Petitioner’s claim that his assault conviction under California Penal Code §
245(a)(2) does not constitute an aggravated felony crime of violence.
3. Petitioner also argues that the “violent or dangerous crime” distinction
provided for in 8 C.F.R. § 1212.7(d) and applied to his application for a waiver of
inadmissibility is unconstitutionally vague. We review constitutional claims arising
from the BIA’s decision de novo. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.
2003).
The attorney general may grant a discretionary waiver of inadmissibility if an
alien can prove his removal would result in extreme hardship to a spouse, parent, or
child, if those qualifying relatives are United States citizens or lawfully admitted
permanent residents. 8 U.S.C. §.1182(h)(1)(B). But when an alien has committed
a violent or dangerous crime a heightened standard applies. See 8 C.F.R. §
3 1212.7(d). In those cases, the attorney general will only exercise favorable
discretion in “extraordinary circumstances,” including when the alien clearly
demonstrates that the denial of the application would result in “exceptional and
extremely unusual hardship.” 8 C.F.R. § 1212.7(d).
Petitioner argues 8 C.F.R. § 1212.7(d) is unconstitutionally vague under
Johnson v. United States, 576 U.S. 591 (2015), because it applies a heightened
standard for “violent or dangerous crimes.” In Johnson, the Supreme Court held the
residual clause of the Armed Career Criminal Act—which designated a “violent
felony” as any felony that “otherwise involves conduct that presents a serious risk
of physical injury to another”—was unconstitutionally vague. 576 U.S. at 594; see
id. at 601–02. The Court explained that the residual clause violates due process
because it requires a judge to imagine an “ordinary case” of a particular crime and
then decide if that ordinary version of the crime presented a serious risk of physical
injury. Id. at 596. “It is one thing,” the Court clarified, “to apply an imprecise
‘serious potential risk’ standard to real-world facts; it is quite another to apply it to
a judge-imagined abstraction.” Id. at 598.
Johnson provides no support for Petitioner’s argument. Unlike the categorical
approach required by the residual clause in Johnson, the BIA applies a circumstance-
specific approach when deciding whether an offense is violent or dangerous under 8
C.F.R. § 1212.7(d). That is, the BIA considers the alien’s actual conduct rather than
4 hypothesizing about an “ordinary case.” See Johnson, 576 U.S. at 596. Again, “[t]he
residual clause failed not because it adopted a ‘serious potential risk’ standard but
because applying that standard under the categorical approach required courts to
assess the hypothetical risk posed by an abstract generic version of the offense.”
Welch v. United States, 136 S. Ct. 1257, 1262 (2016). Because the BIA considers
whether the alien’s actual conduct was violent or dangerous (as opposed to
imagining a hypothetical, ordinary case of a crime), we deny Petitioner’s claim that
the heightened standard used in 8 C.F.R. § 1212.7(d) is unconstitutionally vague.
4. Petitioner’s final arguments take issue with the BIA’s discretionary
decisions. Petitioner complains that: (1) the BIA erred in viewing his assault
conviction as a “violent or dangerous crime”; (2) the BIA failed to consider all the
evidence when deciding whether he would face exceptional and extremely unusual
hardship from deportation; (3) the BIA failed to consider all the evidence when
deciding whether he presented extraordinary circumstances justifying a waiver of
inadmissibility; and (4) the BIA failed to balance all relevant discretionary factors,
including “evidence of positive equities,” before denying Petitioner’s application for
a waiver of inadmissibility.
As a general matter, we lack jurisdiction to review the BIA’s discretionary
decision to view a crime as a violent or dangerous one. Torres-Valdivias v. Lynch,
786 F.3d 1147, 1152–53 (9th Cir. 2015). We similarly lack jurisdiction to consider
5 “any discretionary aspect of the agency’s decision to deny [Petitioner’s] application
for adjustment of status and waiver of inadmissibility.” Diego v. Sessions, 857 F.3d
1005, 1011 (9th Cir. 2017). While we retain jurisdiction to ensure the BIA
considered the relevant evidence in making its decision, absent an indication
otherwise, we presume the agency considered all relevant evidence in the record.
Szonyi v. Barr, 942 F.3d 874, 897 (9th Cir. 2019). And we will not permit a
petitioner to “cloak[] an abuse of discretion argument in constitutional [or legal]
garb.” Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (quoting
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)).
Here, the BIA adequately explained why it considered Petitioner’s assault
conviction to be violent or dangerous crime. The BIA also identified relevant record
evidence before exercising its discretion to deny Petitioner’s application for a waiver
of inadmissibility. The BIA’s decision does not reflect a failure to consider the
pertinent evidence. We therefore dismiss Petitioner’s remaining claims for lack of
jurisdiction.
DENIED in part; DISMISSED in part.