NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX COLORADO MORAN, AKA Alex No. 17-70508
Colorado, AKA Alex Moran Colorado,
AKA Alex Moran, AKA Alex Antonio Agency No. A029-274-714
Moran, AKA Alex Colorado Moran,
Petitioner, MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 7, 2019
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and SETTLE,** District Judge.
Alex Colorado Moran petitions from the decision of the Board of
Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of his
application for asylum, withholding of removal, deferral of removal under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Convention Against Torture (CAT), and adjustment of status. Moran also argues
that he is eligible for relief under section 203 of the Nicaraguan Adjustment and
Central American Relief Act (NACARA). We have jurisdiction under 8 U.S.C.
§ 1252 and deny the petition.
1. Contrary to Moran’s argument, his conviction under California Penal
Code § 245(a)(1) is an aggravated felony. Our decision in United States v.
Vasquez-Gonzalez, which held that a conviction under California Penal Code
§ 245(a)(1) “was categorically a crime of violence as defined in 18 U.S.C.
§ 16(a),” compels that conclusion. 901 F.3d 1060, 1068 (9th Cir. 2018).
To be sure, Vasquez-Gonzalez addressed a version of the statute “[f]rom its
enactment in 1993 to its amendment in 2011,” and expressly noted that “[t]he
reorganized version of the statute is not before us.” Id. at 1068 & n.8. Moran was
convicted under the reorganized statute. The amended subsection of the statute,
however, criminalizes less conduct than the version of the statute analyzed in
Vasquez-Gonzalez. Compare Cal. Penal Code § 245(a)(1) (1993) (criminalizing
“assault . . . with a deadly weapon or instrument other than a firearm or by means
of force likely to produce great bodily harm”), with Cal. Penal Code § 245(a)(1)
(2012) (criminalizing “assault . . . with a deadly weapon or instrument other than a
firearm”). Accordingly, because we held in Vasquez-Gonzalez that the conduct
penalized by California Penal Code § 245(a)(1) (1993) is a crime of violence, so
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too is the conduct penalized by the revised version of California Penal Code
§ 245(a)(1) under which Moran was convicted necessarily a crime of violence.
Moran was sentenced to five years in prison. Accordingly, his conviction
under California Penal Code § 245(a)(1) was an aggravated felony and a
particularly serious crime. See 8 U.S.C. § 1101(a)(43)(F) (defining aggravated
felony as “a crime of violence . . . for which the term of imprisonment [is] at least
one year”); 8 U.S.C. § 1231(b)(3)(B)(iv) (alien “who has been convicted of an
aggravated felony (or felonies) for which [he or she] has been sentenced to an
aggregate term of imprisonment of at least 5 years shall be considered to have
committed a particularly serious crime”).1
Because Moran was convicted of an aggravated felony, he is ineligible for
asylum and relief under section 203 of NACARA. See 8 U.S.C.
§ 1158(b)(2)(A)(ii); Ortiz v. INS, 179 F.3d 1148, 1154 n.7 (9th Cir. 1999). And
because he was convicted of a particularly serious crime, he is ineligible for
withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). We therefore deny the
1
We also reject Moran's argument that he was not convicted of an
aggravated felony because his sentence was ambiguous or because a portion was
suspended. The court sentenced Moran to a total of five years’ incarceration,
which is the only relevant fact for purposes of determining the length of his
sentence. See 8 U.S.C. § 1101(a)(48)(b) (“Any reference to a term of
imprisonment or a sentence with respect to an offense is deemed to include the
period of incarceration or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or sentence in
whole or in part.”)
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petition as to Moran’s asylum, withholding of removal, and NACARA claims.
2. Substantial evidence supports the BIA’s denial of Moran’s CAT claim.
Moran fails to identify any error in the BIA’s decision. The BIA properly
concluded that Moran failed to demonstrate that gangs would likely attempt to
torture him or that public officials would consent to or acquiesce in his
persecution. Substantial evidence supports these conclusions. We therefore deny
the petition as to Moran’s CAT claim.
3. Moran is ineligible for adjustment of status because he does not have a
visa that is immediately available to him. See 8 U.S.C. § 1255(i)(2)(B). Although
Moran’s mother had previously filed a visa petition on his behalf, that petition was
revoked when Moran married. See 8 C.F.R. § 205.1(a)(3)(i)(I). Moran’s refiled
visa petition after his divorce did not revive his prior revoked visa application. See
Alonso-Varona v. Mukasey, 319 F. App’x 502, 504 (9th Cir. 2009) (“While a
subsequent I–130 petition was filed . . . on Alonso–Varona's behalf following his
divorce . . . nothing in the CSPA would permit him to revive the revoked []
petition.”).
Moran’s Opening Brief includes an exhibit that, he contends, demonstrates
that he is eligible to apply for adjustment of status. That exhibit, however, is not
part of the Certified Administrative Record and thus cannot be considered by our
court. See 8 U.S.C. § 1252(b)(4)(A). Because Moran offers no other evidence to
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support his adjustment of status claim, we deny the petition as to that claim.
4. Finally, the Supreme Court’s decision in Pereira v. Sessions does not
affect Moran’s case. 138 S. Ct. 2105 (2018). Pereira held that if the government
serves an alien with a notice to appear (NTA) that does not specify the time or
place of the alien’s initial removal hearing, service of that document does not
trigger the stop-clock rule. Id. at 2110. We have previously rejected Moran’s
proposed reading of Pereira: that an NTA’s failure to state the time or place of an
alien’s initial removal hearing renders the IJ without jurisdiction over the alien’s
removal proceedings. Karingithi v. Whitaker, 913 F.3d 1158, 1160–61 (9th Cir.
2019).
PETITION FOR REVIEW DENIED.
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