Martinez-Nieto v. Holder

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 17 2010

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

LORENZO MARTINEZ-NIETO, No. 05-75663

Petitioner, Agency No. A075-693-753

v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,

Respondent.

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

Submitted March 12, 2010**
San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

Lorenzo Martinez-Nieto (“Martinez”), a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’ (“BIA”) decision

affirming the immigration judge’s (“IJ”) denial of his application for cancellation

*
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).
of removal and the BIA’s denial of his motion to remand for consideration of his

application for adjustment of status.

We dismiss the petition in part and deny in part. Martinez’s conviction for

conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371 constituted a

crime of moral turpitude rendering him ineligible for cancellation relief. See 8

U.S.C. § 1229b(b)(1)(B) & (C). The plea agreement states expressly that Martinez

and his co-conspirator “agreed to defraud the INS by fraudulently obtaining

permanent residence status and a ‘green card’ for MARTINEZ.” Thus, the record

of conviction makes clear that Martinez was convicted for “conspiracy to defraud”

a federal agency and that he possessed the intent to defraud required for a moral

turpitude offense. See McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per

curiam) (explaining that a crime involving “the intent to defraud clearly is one

involving moral turpitude”).

Since the filing of this appeal, the Department of Homeland Security denied

Martinez’s spousal visa petition, and the BIA dismissed Martinez’s administrative

appeal. Consequently, his request for a remand in order to seek adjustment of

status is moot. See DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1174

(9th Cir. 2005) (order).

2
Finally, Martinez failed to allege a colorable equal protection challenge to

the IJ’s refusal to grant a continuance, but rather simply dressed up his challenge to

the IJ’s abuse of discretion in “constitutional garb.” See Torres-Aguilar v. INS,

246 F.3d 1267, 1271 (9th Cir. 2001). Consequently, we lack jurisdiction to review

this claim. See 8 U.S.C. § 1252(a)(2)(C).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.