Alfonso Luviano v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALFONSO RAZO LUVIANO, No. 13-73544

Petitioner, Agency No. A095-733-866

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Argued June 7, 2017; Resubmitted June 22, 2017
Pasadena, California

Before: GRABER and MURGUIA, Circuit Judges, and BOLTON,** District
Judge.

Petitioner Alfonso Razo Luviano seeks review of the Board of Immigration

Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) order

finding Petitioner removable and ineligible for cancellation or voluntary departure.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
The agency ruled that his 2007 conviction under California Penal Code (“Cal.

P.C.”) § 470b and his 2009 conviction under Cal. P.C. § 484 both constitute crimes

involving moral turpitude. Petitioner argues that we should grant his petition

because his conviction under Cal. P.C. § 470b is not a crime involving moral

turpitude and his conviction under Cal. P.C. § 484 qualifies for the petty offense

exception.1 He also argues that it was an abuse of discretion for the IJ to deny his

motion for a continuance to allow his wife—who was then a lawful permanent

resident—to file a visa petition on his behalf.

We have jurisdiction to review constitutional claims or questions of law

pursuant to 8 U.S.C. § 1252(a)(2)(D). We review de novo the BIA’s interpretation

of Petitioner’s statute of conviction. Marmolejo-Campos v. Holder, 558 F.3d 903,

907 (9th Cir. 2009) (en banc). “[O]nce the elements of the petitioner’s offense are

established,” we review “the BIA’s determination that such offense constitutes a

‘crime involving moral turpitude’ [under] the same traditional principles of

administrative deference we apply to the Board’s interpretation of other ambiguous

terms in the INA.” Id. at 911. Because the BIA’s decision in this case is neither

precedential nor based on controlling precedent, we “defer to the BIA’s

1
Petitioner argued for the first time at oral argument that his conviction under Cal.
P.C. § 484 does not constitute a crime involving moral turpitude and that we
should therefore consider whether the petty offense exception applies to his § 470b
conviction. Petitioner never raised these arguments before the IJ or the BIA, so we
lack jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1).

2
determination only to the extent that it has the power to persuade (i.e. Skidmore2

deference).” Latter-Singh v. Holder, 668 F.3d 1156, 1160 (9th Cir. 2012).

1. Petitioner’s conviction under Cal. P.C. § 470b constitutes a crime

involving moral turpitude because § 470b requires the intent to commit forgery as

an element. Although Petitioner argued that he was convicted for the mere

possession of a forged driver’s license, the text of the statute makes clear that one

must display or possess the forged license “with the intent that such driver’s

license or identification card be used to facilitate the commission of any forgery”

to be convicted. Cal. Penal Code § 470b (2007). Forgery has long been held to be a

crime of moral turpitude. Morasch v. INS, 363 F.2d 30, 31 (9th Cir. 1966). We

have held that crimes which necessarily include the intent to commit a crime

involving moral turpitude, such as an attempt or conspiracy, themselves constitute

crimes involving moral turpitude. See McNaughton v. INS, 612 F.2d 457, 459 (9th

Cir. 1980) (per curiam). Because an element of Petitioner’s conviction under Cal.

P.C. § 470b is the intent to commit forgery, his conviction constitutes a crime

involving moral turpitude.

2. Petitioner is not eligible for the petty offense exception for his conviction

under Cal. P.C. § 4843 because the petty offense exception applies only to aliens

2
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
3
Petitioner never disputed before the IJ, the BIA, or in his brief that his conviction
under Cal. P.C. § 484 constitutes a crime involving moral turpitude.

3
who have committed only one crime involving moral turpitude. 8 U.S.C.

§ 1182(a)(2)(A)(ii)(II). Because Petitioner’s convictions under Cal. P.C. §§ 470b

and 484 both constitute crimes involving moral turpitude, he is ineligible for the

exception.

3. We lack jurisdiction to consider Petitioner’s argument that the IJ or the

BIA should have granted a continuance for his wife to file a visa petition now that

she is a citizen because Petitioner never raised her new citizenship status below.

See 8 U.S.C. § 1252(d)(1). Therefore, we review the decision to deny the

continuance based on the information that was before the IJ and BIA. “The

decision to grant or deny a continuance is in the sound discretion of the judge and

will not be overturned except on a showing of clear abuse.” De la Cruz v. INS, 951

F.2d 226, 229 (9th Cir. 1991) (per curiam). Neither the IJ nor the BIA abused its

discretion by denying the requested continuance because Petitioner could not show

that a petition had been filed at the time of his request or appeal, and no visa would

have been immediately available even if it had.

Petition DENIED.