Mtoched v. Lynch, No. 13-70295 (9th Cir. 2015)
Annotate this CasePetitioner, a citizen of Palau and resident of the Commonwealth of the Northern Mariana Islands (CNMI), petitioned for review of an order of removal based on his conviction for assault with a dangerous weapon under CNMI law, 6 N. Mar. I. Code 1204(a). Petitioner contended that the order violated CNMI's right to self-government and was an impermissible retroactive application of law. The court rejected these challenges, concluding that the United States immigration laws may properly be applied and enforced within CNMI to petitioner even though he entered that territory, committed the crime, and suffered the conviction upon which the removal order is based prior to the extension of United States immigration laws to the Commonwealth. The court also concluded that the conviction was for a crime involving moral turpitude and rejected defendant's contention that he is eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h). Accordingly, the court denied the petition for review.
Court Description: Immigration. The panel denied Etumai Mtoched’s petition for review from the Board of Immigration Appeals’ order removing him based on his conviction for assault with a dangerous weapon under Commonwealth of the Northern Mariana Islands law, 6 N. Mar. I. Code § 1204(a). The panel held that United States immigration laws could properly be applied to Mtoched within the CNMI, even though he entered the territory, committed the crime, and was convicted before U.S. immigration laws were extended to the CNMI pursuant to 48 U.S.C. § 1806. The panel held that such application was not impermissibly retroactive, and that it did not infringe upon CNMI’s right to self-government in violation of the terms of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States. The panel also held that Mtoched’s conviction constituted a crime involving moral turpitude, making him removable under the Immigration and Nationality Act. The panel concluded that § 1204(a) is divisible into three subparts all involving bodily injury to another person with a dangerous weapon. Applying the modified categorical approach, the panel held that because Mtoched's conviction entailed purposeful conduct, more than simply reckless conduct, it demonstrated evil intent and constituted a CIMT. MTOCHED V. LYNCH 3 The panel also held that Mtoched was statutorily ineligible for an INA § 212(h) waiver of inadmissibility, because under 8 C.F.R. § 1245.1(f) a waiver for an alien within the United States is available only in connection with an application for adjustment of status, even if he is not eligible to apply for adjustment.
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