Celia Heredia-Guzman v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CELIA HEREDIA-GUZMAN, AKA Celia No. 19-71492 Heredia Guzman, Agency No. A098-408-778 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 13, 2023** San Francisco, California Before: WARDLAW, NGUYEN, and KOH, Circuit Judges. Celia Heredia-Guzman, a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) order denying cancellation of removal. The BIA * 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). concluded that Heredia-Guzman’s conviction under California Welfare and Institutions Code § 10980(c)(2) qualifies as a crime involving moral turpitude (“CIMT”) under 8 U.S.C. § 1227(a)(2), rendering her ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Heredia-Guzman does not dispute that her conviction for welfare fraud under § 10980(c)(2) qualifies as a CIMT. See 8 U.S.C. § 1227(a)(2). Instead, she disputes that her offense carried a maximum sentence of at least one year. See 8 U.S.C. § 1227(a)(2)(A)(i)(II). On January 1, 2015, the California legislature enacted California Penal Code § 18.5, which reduced the maximum jail sentences for misdemeanor convictions from “up to or not exceeding one year” to “a period not to exceed 364 days.” Cal. Penal Code § 18.5 (2015). Two years later, effective January 1, 2017, the California legislature amended § 18.5 to apply retroactively to all misdemeanor convictions, regardless of whether the conviction was finalized on or before the statute’s original enactment date. Cal. Penal Code § 18.5. Heredia-Guzman argues that this reduction applies retroactively to her conviction under § 10980(c)(2) for purposes of § 1227(a)(2)(A)(i). See 8 U.S.C. § 1227(a)(2)(A)(i)(II). In rejecting this argument, the BIA relied on its decision in Matter of Valesquez-Rios, 27 I. & N. Dec. 470, 473 (BIA 2018), in which it held that the state amendment did not affect the applicability of § 1227(a)(2)(A)(i)(II) to 2 a past CIMT conviction because the BIA looks to the maximum possible sentence at the time of conviction. In Velasquez-Rios v. Wilkinson, we affirmed the BIA, “hold[ing] that California’s amendment to § 18.5 of the California Penal Code . . . cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).” 988 F.3d 1081, 1089 (9th Cir. 2021). Accordingly, Heredia-Guzman remains “convicted of a crime for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II). 2. Heredia-Guzman also argues that her conviction does not qualify as an “offense under” § 1227(a)(2) because it is eligible for the “petty offense” exception set forth in 8 U.S.C. § 1182(a)(2)(A)(ii). We have held …

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