Mario Morales-Serrano v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2019
• Docket: 16-70343
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIO ERNESTO MORALES- No. 16-70343 SERRANO, AKA Jose Guarneros, AKA Mario Ernesto Martinez-Serrano, Agency No. A088-758-058

Petitioner, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

Mario Ernesto Morales-Serrano, a native and citizen of Mexico, seeks

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his application for cancellation of removal.

Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of

* 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). law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in

part and dismiss in part the petition for review.

The agency did not err in determining that Morales-Serrano’s offense under

California Health and Safety Code § 11377(a) constituted a “conviction” for

immigration purposes, where he entered a plea of guilty and the judge imposed

some form of punishment, penalty, or restraint on his liberty. See 8 U.S.C.

§ 1101(a)(48)(A); Reyes v. Lynch, 834 F.3d 1104, 1108 (9th Cir. 2016)

(determining that the imposition of a non-suspended fine, requirements to attend

Alcoholics Anonymous meetings, and restrictions on weapons possession and

associations with drug users amounted to “some form of punishment, penalty, or

restraint on the alien’s liberty”). Accordingly, the agency did not err in

determining Morales-Serrano is ineligible for cancellation of removal. See

8 U.S.C. § 1229b(b)(1)(C).

In light of this determination, we need not address Morales-Serrano’s

contentions that he is otherwise eligible for cancellation of removal, nor his

assertion that his eligibility for cancellation of removal is impacted by Pereira v.

Sessions, 138 S. Ct. 2105 (2018). See Simeonov v. Ashcroft, 371 F.3d 532, 538

(9th Cir. 2004) (the courts and the agency are not required to make findings on

issues the decision of which is unnecessary to the results). To the extent Morales-

Serrano contends the immigration court lacked jurisdiction over his proceedings

2 16-70343 under Pereira, that contention is foreclosed by Karingithi v. Whitaker, 913 F.3d

1158, 1160-62 (9th Cir. 2019) (notice to appear need not include time and date of

hearing to vest jurisdiction in the immigration court).

We decline to follow, at Morales-Serrano’s urging, the dissent in Nunez-

Reyes v. Holder, 646 F.3d 684, 703-16 (9th Cir. 2011) (Pregerson, Cir. J.,

dissenting), where Morales-Serrano has not shown the majority decision is clearly

irreconcilable with any intervening higher authority. See Miller v. Gammie, 335

F.3d 889, 892-93 (9th Cir. 2003).

We lack jurisdiction to consider Morales-Serrano’s unexhausted contentions

that his criminal guilty plea did not meet the requirements in Padilla v. Kentucky,

559 U.S. 356 (2010), or that he is eligible for a U Visa. See Tijani v. Holder, 628

F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not

presented in an alien’s administrative proceedings before the BIA.”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 16-70343