FILED
NOT FOR PUBLICATION JAN 23 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSBERTO MENDEZ-QUICHE, No. 14-73916
Petitioner, Agency No. A095-759-236
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Osberto Mendez-Quiche, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming
an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review de novo questions of law, Retuta v. Holder, 591 F.3d 1181,
1184 (9th Cir. 2010), and we deny the petition for review.
The IJ correctly determined that Mendez-Quiche’s two convictions for
violating California Penal Code § 647(b) are crimes involving moral turpitude. See
Rohit v. Holder, 670 F.3d 1085, 1090 (9th Cir. 2012) (solicitation of prostitution
under § 647(b) is categorically a crime involving moral turpitude). To the extent
Mendez-Quiche suggests the panel should overrule Rohit v. Holder, “[a]
three-judge panel cannot reconsider or overrule circuit precedent” in the absence of
an intervening Supreme Court or en banc decision. Avagyan v. Holder, 646 F.3d
672, 677 (9th Cir. 2011).
The IJ correctly determined that Mendez-Quiche’s 2007 plea of nolo
contendere to a violation of California Penal Code § 647(b) is a conviction for
immigration purposes. See 8 U.S.C. § 1101(a)(48); Reyes v. Lynch, 834 F.3d 1104,
1107 (9th Cir. 2016) (“The federal definition of conviction where adjudication of
guilt has been withheld includes aliens who have entered pleas of nolo contendere
and ‘the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.’” (quoting 8 U.S.C. § 1101(a)(48)(ii))); cf. Retuta,
591 F.3d at 1181 (holding that “an unconditional suspended non-incarceratory
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sanction that has no present effect is not a punishment, penalty, or restraint” under
8 U.S.C. § 1101(a)(48)).
Accordingly, because Mendez-Quiche has been convicted of two crimes
involving moral turpitude, the IJ correctly determined that he is statutorily
ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).
Mendez-Quiche’s contention that the BIA erred in summarily affirming the
IJ’s decision is without merit. See 8 C.F.R. § 1003.1(e)(4)(i) (setting forth
situations that are appropriate for affirmance without opinion).
PETITION FOR REVIEW DENIED.
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