Andres Moreno-Sanchez v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
APR 05 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDRES MORENO-SANCHEZ, AKA No. 14-73892
Andres Moreno, AKA Andres Sanchez
Moreno, Agency No. A205-719-460

Petitioner,
MEMORANDUM*
v.

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Argued November 8, 2016 Submitted April 5, 2017
Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and BELL,** District Judge.

Andres Moreno-Sanchez (“Moreno”), a citizen and native of Mexico,

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

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
affirming the denial by the immigration judge (“IJ”) of Moreno’s applications for

asylum, withholding of removal, protection under the Convention Against Torture

(“CAT”), and cancellation of removal. We have jurisdiction pursuant to 8 U.S.C.

§ 1252, and we grant the petition in part, deny it in part, and remand to the BIA.

1. We remand to the BIA for reconsideration of Moreno’s eligibility for

cancellation of removal. The BIA found Moreno ineligible for cancellation based

solely on his violation of California Health and Safety Code (“CHSC”) § 11357(b)

(2011) (amended 2014 and 2016), which the BIA concluded was a “conviction”

within the meaning of INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). From

this, the BIA concluded that Moreno’s conviction was a disqualifying offense

barring him from cancellation pursuant to INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).

Under the language of CHSC § 11357(b) in effect at the time, Moreno’s

conviction was for possession of “not more than 28.5 grams of marijuana,” making

him “guilty of an infraction” only. CHSC § 11357(b) (2011).

The BIA does not categorically treat all “infractions” as “convictions” within

the meaning of INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). In Matter of

Cuellar-Gomez, 25 I. & N. Dec. 850 (BIA 2012), a precedential decision not cited

by the BIA here, the BIA held that a “formal judgment of guilt entered by a court

qualifies as a conviction under section 101(a)(48)(A) so long as it was entered in a

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‘genuine criminal proceeding,’ that is, a proceeding that was ‘criminal in nature

under the governing laws of the prosecuting jurisdiction.’” Id. at 852 (quoting

Matter of Rivera-Valencia, 24 I. & N. Dec. 484, 486–87 (BIA 2008)); see id. at

853–55. Because the BIA did not consider Cuellar-Gomez when it found that

Moreno was ineligible for cancellation, we remand to the BIA for it to consider in

the first instance whether Moreno’s infraction is a “conviction.” See INS v.

Ventura, 537 U.S. 12, 16–17 (2002) (per curiam) (holding that when an agency has

not reached an issue, the proper course is to remand to the agency to address it in

the first instance); Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (en

banc) (“Without knowing the basis of the Board's decision, we cannot conduct a

meaningful review. We therefore remand to the BIA for a clear explanation.”).

2. We lack jurisdiction to review the BIA’s discretionary denial of

Moreno’s request for administrative closure of his case. See Diaz-Covarrubias v.

Mukasey, 551 F.3d 1114, 1117–20 (9th Cir. 2009). Finally, we lack jurisdiction to

consider Moreno’s request for a continuance because Moreno failed to exhaust the

claim before the IJ and the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004). We dismiss the petition for review with respect to those claims.

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 3. In light of our disposition, we decline to reach Moreno’s contentions

regarding asylum, withholding of removal, CAT protection, and voluntary

departure warnings.

PETITION GRANTED IN PART, DENIED IN PART. REMANDED.

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