Tapia-Fierro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 2024
• Docket: 23-312
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS TAPIA-FIERRO, No. 23-312

Petitioners, Agency No. A091-456-635

v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted July 2, 2024**

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

Jose Luis Tapia-Fierro, native and citizen of Mexico, seeks review of the

Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s

(“IJ”) denial of his application for cancellation of removal. We have jurisdiction

through 8 U.S.C. § 1252(a). His petition is denied.

* 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). 1. Because Tapia-Fierro was convicted of two crimes involving moral

turpitude—(1) a petty theft conviction and (2) a reckless manslaughter conviction—

we deny his petition to review the removability charges. See 8 U.S.C.

§ 1227(a)(2)(A)(ii). Our court reviews whether a state conviction constitutes a crime

involving moral turpitude de novo. Ortiz v. Garland, 25 F.4th 1223, 1226 (9th Cir.

2022). To determine whether a conviction is a crime involving moral turpitude, we

identify the elements of the statute of conviction, and then compare them to the

generic definition of a crime involving moral turpitude. Id.

Tapia-Fierro conceded that his conviction for petty theft with priors, in

violation of California Penal Code § 666, is a crime involving moral turpitude. See

Ballinas-Lucero v. Garland, 44 F.4th 1169, 1173 (9th Cir. 2022). His reckless

manslaughter conviction, violating Arizona Revised Statute § 13-1103(a)(1) is also

a crime involving moral turpitude because it involves reckless conduct causing

human death. See Ortiz, 25 F.4th at 1227 (holding California’s voluntary

manslaughter statute, which requires recklessness, is a crime involving moral

turpitude because “the harm—the unlawful killing of a human—stands at the apex”).

And Tapia-Fierro’s argument that he was voluntarily intoxicated is not a defense for

reckless manslaughter. Ariz. Rev. Stat. Ann. § 13-105.

2. Substantial evidence supports the BIA’s finding that Tapia-Fierro is

removable for illegally reentering the United States by falsely claiming United States

2 citizenship. See 8 U.S.C. § 1227(a)(3)(D)(i). An alien “who falsely

represents . . . himself to be a citizen of the United States for any purpose or

benefit . . . is deportable.” 8 U.S.C. § 1227(a)(3)(D)(i). Tapia-Fierro admitted to

lying about being a United States citizen so that he could enter the country in 2001.

And even though a district court found Tapia-Fierro had been erroneously removed

two months before, that does not justify his illegal reentry. See Morales-Izquierdo

v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007) (explaining aliens “have no

constitutional right to force the government to re-adjudicate a final removal order by

unlawfully reentering the country”). Further, Tapia-Fierro’s claim that he is Native

American is unsupported. So Tapia-Fierro’s false representation that he was a

United States citizen is grounds for removal.

3. Tapia-Fierro argues the Department of Homeland Security was

foreclosed from issuing new removability charges on remand because it waived its

ability to do so. But there was no final order for removal in December 2012, when

Homeland Security brought new removability charges against Tapia-Fierro. See 8

C.F.R. § 1003.30 (permitting Homeland Security to “[a]t any time during

deportation or removal proceedings,” bring “additional or substituted charges of

deportability”). Because there was no final judgment at this point, Tapia-Fierro’s

res judicata argument does not apply here. Poblete Mendoza v. Holder, 606 F.3d

1137, 1140 (explaining res judicata requires a “final judgment on the merits”).

3 4. Because Tapia-Fierro failed to raise any colorable legal or

constitutional claims, we deny his petition to review the IJ’s discretionary denial of

his application to cancel removal. See 8 U.S.C. § 1252(a)(2)(D); Umana-Escobar

v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). Tapia-Fierro claims the IJ erred by

not fully considering his procedural history. But he must overcome the presumption

that the IJ considered all relevant evidence. See Larita-Martinez v. I.N.S., 220 F.3d

1092, 1095–96 (9th Cir. 2000). The record shows the IJ’s decision was based on

controlling agency precedent, a review of all relevant factors and evidence, and a

balancing of the positive and negative factors in Tapia-Fierro’s case. And any claim

by Tapia-Fierro that the IJ’s questioning of his criminal history prejudiced his case

is not supported by the record.

5. Tapia-Fierro also argues his due process rights were violated. He

argues that because his pro bono counsel was denied the opportunity to appear

telephonically in 2019, he was denied a right to counsel. He alleges that because of

the IJ’s denial, his counsel had to withdraw. But that assertion is contradicted by the

record. The record indicates multiple reasons existed for his pro bono counsel’s

withdrawal, and that Tapia-Fierro further consented to the withdrawal. The IJ also

gave Tapia-Fierro reasonable time to find new counsel. See Arrey v. Barr, 916 F.3d

1149, 1158 (9th Cir. 2019) (explaining that the fact-specific inquiry to determine

“reasonable time” includes “the number of continuances” and barriers to finding

4 counsel, including petitioner’s incarceration and “inability to speak English”

(simplified)). Here, the IJs granted two continuances after Tapia-Fierro’s counsel

withdrew. And Tapia-Fierro had nearly two years after his counsel withdrew to find

new counsel. In late 2021, the IJ warned Tapia-Fierro that she would assume he was

proceeding pro se in the next hearing if he still hadn’t obtained an attorney by then.

The proceedings were conducted in English at Tapia-Fierro’s request. So the IJ

“t[ook] reasonable steps to ensure” Tapia-Fierro’s “statutory right to counsel [wa]s

honored.” Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007).

PETITION DENIED.