Cervantes v. Holder, No. 10-73384 (9th Cir. 2014)
Annotate this CasePetitioner, a native and citizen of Mexico, sought review of a final order of removal where BIA found petitioner inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), and ineligible for an exception under section 1182(a)(2)(A)(ii), because he was convicted of two crimes involving moral turpitude (CIMTs). Petitioner was convicted of spousal abuse under California Penal Code 273.5(a) and threatening to commit a crime resulting in death or great bodily injury under California Penal Code 422. The court held that although the BIA correctly concluded that petitioner's conviction under section 422 is a CIMT, the BIA erred in concluding that petitioner was convicted of spousal abuse under section 273.5(a) by looking to evidence outside the record of conviction; the BIA's decision in In re Rotimi is entitled to deference; and the BIA correctly found petitioner ineligible for an extreme hardship waiver. Accordingly, the court granted the petition and remanded for further proceedings.
Court Description: Immigration. The panel granted Adrian Vargas Cervantes’s petition for review from the Board of Immigration Appeals’ decision finding him inadmissible based on his convictions for two crimes involving moral turpitude, and ineligible for an extreme hardship waiver or petty offense exception. The panel held that the BIA correctly concluded that Vargas’s California Penal Code § 422 conviction for threatening to commit a crime resulting in death or great bodily injury constituted a CIMT. The panel also concluded that the BIA’s holding in In re Rotimi, 24 I. & N. Dec. 567 (BIA 2008), that the time an alien spends in the United States awaiting approval of an adjustment application does not count toward INA § 212(h)’s lawful residency requirement, is entitled to Chevron deference. The panel accordingly held that the BIA correctly found Vargas ineligible for a § 212(h) extreme hardship waiver. The panel held, however, that the BIA erred by looking to evidence outside the record of conviction to conclude that Vargas was convicted of spousal abuse under CPC § 273.5(a). The panel also held that the BIA erred in concluding that Vargas did not qualify for the petty offense exception, and thus remanded for the BIA to consider whether Vargas is eligible for the exception.
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