Sylvia Ocampo-Ortiz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2021
• Docket: 18-72115
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SYLVIA OCAMPO-ORTIZ, No. 18-72115 19-71558 Petitioner, Agency No. A098-571-321 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Argued and Submitted March 1, 2021 San Francisco, California

Before: WARDLAW and BERZON, Circuit Judges, and CHEN,** District Judge.

Silvia Ocampo-Ortiz (“Ocampo”) petitions for review of the Board of

Immigration Appeals’ (“the Board’s”) denial of her motions for sua sponte

reopening of her removal proceedings and for reconsideration of that denial. We

have “jurisdiction to review Board decisions denying sua sponte reopening for the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. limited purpose of reviewing the reasoning behind the decisions for legal or

constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Because

the Board committed several legal errors in denying Ocampo’s motion to reopen,

we grant the petitions for review.

1. In denying Ocampo’s motion to reopen, the Board stated that it was

“not able to cancel her removal” because she was “no longer present in the United

States,” having already been removed. The Board’s reasoning directly contradicts

Supreme Court precedent: as long as Ocampo satisfies the “requirements of 8

U.S.C. § 1229b(a), [she] may still seek cancellation of removal even after having

been removed.” Carachuri-Rosendo v. Holder, 560 U.S. 563, 573 n.8 (2010).

At oral argument, the government suggested that the Board did not view

Ocampo’s removal as a barrier to reopening her proceedings so that she could seek

cancellation of removal, but simply as a factor the Board could consider in its

exercise of discretion. But the government’s post hoc rationalization cannot be

squared with the plain language of the Board’s decision—that it was “not able” to

cancel Ocampo’s removal because she had already been removed. That conclusion

was legal error and an invalid basis on which to deny the motion to reopen.

2. In denying Ocampo’s motion for reconsideration, the Board stated

that Ocampo’s failure to object to the Board’s characterization of her motion to

reopen as “time and number barred” was “sufficient reason by itself to deny her

2 motion to reconsider.” However, the Board’s decision on the motion to reopen did

not state that Ocampo’s failure to comply with the timing and numerosity

requirements for a motion to reopen was a reason for the denial. Instead, the Board

noted in its recitation of the procedural background that Ocampo “has now filed an

untimely and number barred motion to reopen on February 15, 2018.” The Board

went on to deny the motion for sua sponte reopening on the erroneous basis that

Ocampo had already been removed. To the degree the Board’s denial of

reconsideration relied on Ocampo’s failure to challenge a purported ground for

denying sua sponte reopening that was not in fact a basis for that denial, the

Board’s denial of reconsideration was an abuse of discretion.

3. The Board offered an additional reason for denying the motion for

reconsideration—that Ocampo had not established her prima facie eligibility for

cancellation of removal because she had “not demonstrated by a preponderance of

the evidence that her conviction for accessory to felony perjury [was] not a crime

involving moral turpitude.”

Contrary to the government’s argument, we have jurisdiction to review this

rationale because Ocampo exhausted before the Board her contention that her

conviction was not a crime involving moral turpitude. Ocampo made this argument

in detail in her motion for sua sponte reopening. Additionally, the Board addressed

the issue on the merits. We may therefore consider the issue. See Parada v.

3 Sessions, 902 F.3d 901, 914 (9th Cir. 2018).

The Board’s determination that Ocampo had not established prima facie

eligibility for cancellation of removal was legally erroneous for three reasons.

First, the Board erroneously stated that Ocampo had been convicted of

“accessory to felony perjury,” when in fact the statute of conviction was section 32

of the California Penal Code, accessory after the fact. Although that statute

requires that a “felony [have] been committed,” it does not identify any particular

felony. Cal. Penal Code § 32. Nor does the record of conviction indicate the

underlying offense. Moreover, even if the underlying offense were felony perjury,

we have held that California’s perjury statute, section 118 of the California Penal

Code, is not categorically a crime involving moral turpitude, and “the specific

offense of written perjury is not a [crime involving moral turpitude].” Rivera v.

Lynch, 816 F.3d 1064, 1069, 1079 (9th Cir. 2016). As the underlying crime is not

categorically a crime involving moral turpitude, being accessory after the fact to

that crime cannot be a crime involving moral turpitude. See Matter of Rivens, 25 I.

& N. Dec. 623, 627–28 (BIA 2011).

Second, we have held that “accessory after the fact under California Penal

Code § 32 . . . is not a crime involving moral turpitude.” Navarro-Lopez v.

Gonzales, 503 F.3d 1063, 1078 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring

for the majority). Navarro-Lopez applied the categorical approach established by

4 the Supreme Court in Taylor v. United States, 495 U.S. 575, 599–602 (1990), and

declined to apply the modified categorical approach. 503 F.3d at 1067, 1073. Later,

in Descamps v. United States, 570 U.S. 254, 278 (2013), the Supreme Court held

that a “court may use the modified approach only to determine which alternative

element in a divisible statute formed the basis of the defendant’s conviction.” Our

decision in Navarro-Lopez not to apply the modified categorical approach to

section 32 of the California Penal Code remains valid under Descamps, as section

32 is not divisible. See Almanza-Arenas v. Lynch, 815 F.3d 469, 477–78 (9th Cir.

2016).

Third, even if Ocampo’s conviction were a crime involving moral turpitude,

it would not bar her from seeking cancellation of removal because it is a

misdemeanor. A crime involving moral turpitude disqualifies a person from

seeking cancellation of removal, either as a criminal bar or as a bar to establishing

good moral character, if the crime is one “for which a sentence of one year or

longer may be imposed,” 8 U.S.C. § 1227(a)(2)(A)(i); see id. § 1182(a)(2)(A)(ii),

or the sentence actually imposed was “a term of imprisonment in excess of 6

months,” id. § 1182(a)(2)(A)(ii); see id. §§ 1229b(b)(1)(B) & (C), 1101(f)(3). As

of 2015, the maximum sentence for a misdemeanor in California is 364 days. Cal.

Penal Code § 18.5. Ocampo’s misdemeanor conviction was entered in 2017, so the

maximum sentence available was 364 days. Ocampo was actually sentenced to 19

5 days in jail and three years of probation. As a result, even if Ocampo’s

misdemeanor conviction were a crime involving moral turpitude, it would not bar

her from seeking cancellation of removal.

Because the Board committed legal errors in denying Ocampo’s motion for

sua sponte reopening, we remand to the Board so it may “exercise its discretion

against the correct legal framework.” Bonilla, 840 F.3d at 592.

PETITIONS GRANTED.