Eni Russel Ortiz-salgado, Petitioner, v. Immigration and Naturalization Service, Respondent, 120 F.3d 269 (9th Cir. 1997)

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

Before: HUG, Chief Judge, KOZINSKI and LEAVY, Circuit Judges

MEMORANDUM^* 

Eni Russel Ortiz-Salgado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from the immigration judge's ("IJ") order denying his application for suspension of deportation under 8 U.S.C. § 1254(a) (1) and voluntary departure under 8 U.S.C. § 1254(e). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we deny the petition for review.¹ 

Ortiz-Salgado contends that the BIA erred in finding he lacked good moral character because he was not convicted of a crime that imposes a maximum possible penalty of more than one year imprisonment. This contention lacks merit.

To qualify for suspension of deportation, a petitioner must show good moral character for a period of at least seven years immediately preceding the date of the application. See 8 U.S.C. § 1254(a) (1) (Supp.1997). To qualify for voluntary departure, a petitioner must establish good moral character for the five years immediately preceding the application. See 8 U.S.C. § 1254(e) (1) (Supp.1997). A petitioner who has been convicted of a crime involving moral turpitude cannot establish good moral character. See 8 U.S.C. §§ 1101(f) (3), 1182(a) (2) (A) (i) (I) (Supp.1997). However, if the maximum penalty possible for the crime of which the petitioner was convicted does not exceed imprisonment for one year and if the petitioner was not sentenced to a term in excess of six months, he may establish that he is a person of good moral character. See 8 U.S.C. § 1182(a) (2) (A) (ii) (II) (Supp.1997).

Ortiz-Salgado was convicted of second degree burglary in violation of Cal.Penal Code § 459. Burglary is a crime of moral turpitude. See De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (per curiam). In California, burglary is punishable by imprisonment in the county jail not to exceed one year or imprisonment in state prison for a maximum of three years. See Cal.Penal Code §§ 18, 461 (West 1988). Although Ortiz-Salgado was sentenced to six months in the county jail, he could have been sentenced to three years in state prison.²  Thus, the BIA correctly found that Ortiz-Salgado cannot demonstrate good moral character. See Abedini, 971 F.2d at 190-91; 8 U.S.C. §§ 1101(f) (3), 1182(a) (2) (A) (i) (I), (2) (A) (ii) (II). Therefore, Ortiz-Salgado does not qualify for suspension of deportation or voluntary departure. See 8 U.S.C. § 1254(a) (1), (e).

Accordingly, there is substantial evidence to support the BIA's denial of Ortiz-Salgado's application for suspension of deportation and voluntary departure. See Mabugat, 937 F.2d at 431; Hernandez-Luis, 869 F.2d at 498.

AFFIRMED.