FILED
NOT FOR PUBLICATION JUN 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS ALEJANDRO MARTINEZ-LEIVA, No. 07-74171
aka Alexander Martinez,
Agency No. A012-870-529
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 12, 2012
Submission Withdrawn January 18, 2012
Resubmitted June 14, 2012
Pasadena, California
Before: REINHARDT and W. FLETCHER, Circuit Judges, and ZOUHARY,
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for Northern Ohio, sitting by designation.
Luis Alejandro Martinez-Leiva, a native and citizen of Costa Rica, petitions
for review of a decision by the Board of Immigration Appeals (“BIA”) affirming a
decision by an immigration judge (“IJ”) finding him removable for having been
convicted of two crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii),
Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(ii), and denying him
cancellation of removal under 8 U.S.C. § 1229b, INA § 240A, and a waiver of
removability under 8 U.S.C § 1182(c), INA § 212(c). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a), and we deny the petition for review.
1. Martinez-Leiva contends that the IJ deprived him of a full and fair
hearing in violation of due process because the IJ did not explain to him what was
required to establish eligibility for relief. To succeed on his due process claim,
Martinez-Leiva must show that he suffered prejudice as a result of the violation.
See Jacinto v. INS, 208 F.3d 725, 734 (9th Cir. 2000) (“The lack of a full and fair
hearing, however, will not alone establish a due process violation. The alien must
establish that []he suffered prejudice.”). “Prejudice is shown if the violation
potentially affects the outcome of the proceedings.” Agyeman v. INS, 296 F.3d 871,
884 (9th Cir. 2002) (internal quotation marks omitted). Here, Martinez-Leiva has
not shown how the outcome of the proceeding would have been different had the IJ
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explained what was required to establish eligibility for cancellation of removal and
a § 212(c) waiver. As discussed below, the evidence in the record shows that
Martinez-Leiva was not eligible for either form of relief. Therefore, Martinez-
Leiva has not shown that he was prejudiced by the alleged violation, and his due
process claim fails.
2. The BIA did not err in relying on the abstract of judgment to find that
Martinez-Leiva had been convicted of two crimes involving moral turpitude and
that his 1994 conviction was for an aggravated felony. See Kwong v. Holder, 671
F.3d 872, 879-80 (9th Cir. 2011).
3. Martinez-Leiva exhausted his administrative remedies with respect to the
finding of removability, as he asserted in his brief to the BIA that the IJ had erred
in finding that he had been convicted of two crimes involving moral turpitude. See
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008). We agree with the
BIA that Martinez-Leiva is removable for having been convicted of two crimes
involving moral turpitude not arising out of a single scheme of criminal
misconduct, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), INA § 237(a)(2)(A)(ii). In
1994, Martinez-Leiva pled guilty to three counts of felony insurance fraud, in
violation of Cal. Ins. Code § 1871.4(a)(2). In 2005, he pled guilty to two counts of
felony insurance fraud, in violation of Cal. Ins. Code § 1871.4(a)(1). Both the 1994
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Criminal Complaint and the 2005 Information, to which Martinez-Leiva pled
guilty, charged him with making fraudulent or knowingly false statements for the
purpose of obtaining workers’ compensation benefits. Martinez-Leiva therefore
admitted to making fraudulent or knowingly false statements for the purpose of
obtaining a monetary benefit. Consequently, his crimes are crimes involving moral
turpitude because they “involve knowingly false representation[s] to gain
something of value.” Tijani v.Holder, 628 F.3d 1071, 1075 (9th Cir. 2010)
(internal quotation marks omitted); see also Blanco v. Mukasey, 518 F.3d 714, 719
(9th Cir. 2008) (“Our cases hold that intent to defraud is implicit in the nature of
the crime when the individual makes false statements in order to procure
something of value, either monetary or non-monetary.”).
4. We also agree with the BIA that Martinez-Leiva is ineligible for a
§ 212(c) waiver of removability because of his 2005 conviction. Relief is available
to aliens who, on reliance on the availability of the waiver, pled guilty or were
convicted after trial of certain crimes prior to the repeal of that waiver provision in
1996. See Peng v. Holder, 673 F.3d 1248, 1254-57 (9th Cir. 2012). Because
Martinez-Leiva pled guilty to insurance fraud in 2005, he is not eligible for the
waiver of removability under 8 U.S.C. § 1182(c), INA § 212(c).
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5. Finally, we agree with the BIA that Martinez-Leiva is ineligible for
cancellation of removal under 8 U.S.C. § 1229b, INA § 240A, because his 1994
conviction was an aggravated felony involving fraud or deceit for which the loss
exceeds $10,000. Martinez-Leiva was convicted of a crime of fraud or deceit for
making fraudulent or knowingly false statements for the purpose of obtaining
workers’ compensation benefits. Moreover, the abstract of judgment showed that,
for his 1994 conviction, Martinez-Leiva was ordered to pay restitution in the
amounts of $64,815.48, $42,234.72 and $4,045.99. Pursuant to Cal. Penal Code
§ 1202.4(f), the amount of restitution ordered is based on, and cannot exceed, the
amount of loss to the victim. See People v. Busser, 113 Cal. Rptr. 3d 536, 541 (Cal.
Ct. App. 2010) (“Victims are only entitled to an amount of restitution so as to
make them whole, but nothing more, from their actual losses arising out of the
defendants’ criminal behavior.”). Therefore, Martinez-Leiva was convicted of a
crime of fraud or deceit in which the loss to the victim exceeded $10,000, an
aggravated felony under 8 U.S.C. § 1101(a)(43)(M), INA § 101(a)(43)(M). As
such, he is ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3), INA
§ 240A(a)(3).
6. In closing, we note that DHS has discretionary authority to refrain from
implementing its order of deportation, notwithstanding our denial of the petition.
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We would hope that DHS consider petitioner’s entire record before taking further
action.
The petition for review is DENIED.
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