Mancilla-Delafuente v. Lynch, No. 12-73469 (9th Cir. 2015)
Annotate this CasePetitioner, a native and citizen of Mexico, petitioned for review of the BIA's finding of removeability and determination that he was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude (CIMT) for which a sentence of one year or longer may be imposed pursuant to 8 U.S.C. 1229b(b). The court affirmed the BIA’s finding that petitioner's violation of Nev. Rev. Stat. 205.690(2) and 199.480, possession of a credit card or debit card without the consent of the cardholder, is a categorical CIMT. Further, petitioner is not entitled to a petty offense exception in section 1182(a)(2)(A)(ii) because the exception is only available to aliens whose CIMT conviction did not have a maximum possible penalty of imprisonment for a year or more. The court concluded that a conspiracy conviction under Nev. Rev. Stat. 199.480 is a gross misdemeanor potentially punishable by one year imprisonment, and is covered by section 1227(a)(2)(A)(i)(I). Although petitioner was not sentenced to a year imprisonment, the court deferred to the BIA’s reasonable approach of considering the sentence that could have been imposed, not the actual sentence. Finally, the court concluded that petitioner's reliance on the Fourth Circuit decision in Soliman v. Gonzales is unavailing. Accordingly, the court dismissed the petition for review.
Court Description: Immigration. The panel dismissed Hector Mancilla-Delafuente’s petition for review of the Board of Immigration Appeals’ decision finding him ineligible for cancellation of removal based on his conviction for conspiracy to possess a credit card without consent, in violation of Nevada Rev. Stat. §§ 199.480 and 205.690(2). The panel held that because an intent to defraud applies to all conduct proscribed by § 205.690(2), a conviction under the statute is a categorical crime involving moral turpitude. The panel also held that Mancilla-Delafuente was not eligible for the petty offense exception because a conspiracy conviction under § 199.480 is a gross misdemeanor potentially punishable by imprisonment up to one year. The panel deferred to the BIA’s interpretation of the Immigration and Nationality Act, which considers the sentence potentially imposed rather than the sentence actually imposed. MANCILLA-DELAFUENTE V. LYNCH 3
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