FILED
NOT FOR PUBLICATION JUL 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFONSO TORRES-SANCHEZ, No. 09-74115
Petitioner, Agency No. A092-228-395
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2014**
San Francisco, California
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge.***
Alfonso Torres-Sanchez, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals (BIA) affirming an immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
judge’s (IJ) decision finding Torres-Sanchez removable based on his California
conviction for a crime involving moral turpitude.1 Under 8 U.S.C. §
1252(a)(2)(C), “except as provided in subparagraph (D), no court shall have
jurisdiction to review any final order of removal against an alien who is removable
by reason of having committed a criminal offense covered in section 1182(a)(2).”
The offenses covered by § 1182(a)(2) include crimes involving moral turpitude.
Id. § 1182(a)(2)(A)(i)(I). “This court has jurisdiction to determine whether
jurisdiction exists.” Morales v. Gonzales, 478 F.3d 972, 977 (9th Cir. 2007)
(citation and internal quotation marks omitted). We do not have jurisdiction,
therefore we must dismiss the petition.
California Penal Code § 288(a) criminalizes lewd or lascivious acts upon or
with the body of a child who is under the age of 14 years, “with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of that
person or the child.” Torres-Sanchez conceded before the BIA, and before this
court, that if he had been convicted of violating § 288(a), then he would be subject
to deportation because violation of § 288(a) is a crime involving moral turpitude
under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Therefore, the only question before us is
1
Because the parties are familiar with the facts of the case, we will not
recount them here.
2
whether there is reasonable, substantial, and probative evidence that Torres-
Sanchez was convicted of violating § 288(a). 8 U.S.C. § 1229a(c)(3)(A).
The IJ granted Torres-Sanchez two continuances to await the result of his
motion to vacate his conviction in state court. On August 27, 2009, Torres-
Sanchez’s attorney informed the IJ that the motion to vacate the state conviction
was denied. At that same hearing the IJ acknowledged that the state conviction
was for violation of § 288(a). The record contains a felony complaint charging
Torres-Sanchez with violating § 288(a) and several minute orders concerning that
charge. These are appropriate documents to rely on as proof of a criminal
conviction in these circumstances, and these documents establish that Torres-
Sanchez was convicted of violating § 288(a). 8 U.S.C. § 1229a(c)(3)(B).
This court has jurisdiction to review “constitutional claims or questions of
law.” See id. § 1252(a)(2)(D). But such claims “must present a colorable claim,”
meaning “the claim must have some possible validity.” See Mendez-Castro v.
Mukasey, 552 F.3d 975, 978 (9th Cir. 2009). None of the arguments raised by
3
Torres-Sanchez in his petition are colorable.2 Therefore, we lack jurisdiction to
review the BIA’s decision affirming the IJ’s removal order. See 8 U.S.C. §§
1252(a)(2)(C) & (D).
The petition is DISMISSED for lack of jurisdiction.
2
Torres-Sanchez also raised claims on appeal that were not raised to
the BIA and are therefore unexhausted. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (this court lacks jurisdiction to review contentions not raised before
the agency).
4