Valenzuela Garcia v. Holder

FILED
NOT FOR PUBLICATION FEB 27 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MARIA GUADALUPE VALENZUELA No. 06-70543
GARCIA,
Agency No. A070-917-665
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 17, 2012 **
San Francisco, California

Before: TASHIMA and SILVERMAN, Circuit Judges, and ADELMAN, District
Judge.***

*
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)(C).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Maria Valenzuela Garcia, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from

an Immigration Judge’s (“IJ”) denial of her application for cancellation of removal

or, alternatively, voluntary departure. The scope of our jurisdiction is governed by

8 U.S.C. § 1252. We dismiss the petition for review.

1. Valenzuela Garcia first contends that the offense of which she was

convicted, a violation of Cal. Welf. & Inst. Code § 10980(c)(2), was not a crime

involving moral turpitude (“CIMT”) that rendered her ineligible for cancellation of

removal. Valenzuela Garcia exhausted her administrative remedies with respect to

this claim. Although she did not mention the issue in her appeal to the BIA, the

BIA still addressed it. That satisfied the exhaustion requirement. See Kin v.

Holder, 595 F.3d 1050, 1055 (9th Cir. 2010).

On the merits, however, Valenzuela Garcia’s argument is foreclosed by our

decision in Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004), abrogated on other

grounds by Nijhawan v. Holder, 129 S.Ct. 2294, 2302-03 (2009). In Ferreira, we

held that the same provision that Valenzuela Garcia was convicted of violating, §

10980, contains an element of fraud. Id. at 1096-97. Such offenses are

categorically CIMTs. See Planes v. Holder, 652 F.3d 991, 997-98 (9th Cir. 2011)

(reaffirming the “longstanding rule that crimes that have fraud as an element . . .

2
are categorically crimes involving moral turpitude”). We therefore lack

jurisdiction to review the order of removal against Valenzuela Garcia. See 8

U.S.C. § 1252(a)(2)(C).

2. Valenzuela Garcia also challenges the denial of her request for

voluntary departure, as premised on the erroneous assumption that she had been

convicted of an aggravated felony. The IJ’s decision, however, rested on two

independent grounds, the second of which was purely discretionary, and the BIA

affirmed that discretionary decision. We lack jurisdiction to review challenges to

discretionary denials of voluntary departure. 8 U.S.C. §§ 1252(a)(2)(B), 1229c(f);

Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011).1

PETITION FOR REVIEW DISMISSED.

1
Valenzuela Garcia requests attorney’s fees pursuant to the Equal
Access to Justice Act. But EAJA fees can only be awarded “to a prevailing party,”
28 U.S.C. § 2412(d)(1)(A), which Valenzuela Garcia is not.