653 F. App'x 547
9th Cir.2016Background
- Petitioner Jose Alberto Prieto-Hernandez appealed the IJ’s removal order denying or pretermitting asylum, withholding of removal, INA cancellation of removal, and NACARA special-rule cancellation.
- The IJ found Prieto had no reasonable expectation of future persecution, a threshold for asylum and withholding; Prieto did not challenge that finding before the BIA or this Court.
- Prieto has a 1997 California conviction for receipt of stolen property under Cal. Penal Code § 496(a) and received a 365-day sentence.
- The government argued that Prieto’s conviction is a “theft offense” qualifying as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which bars INA cancellation and NACARA relief because the sentence was at least one year.
- Prieto relied on California recharacterization statutes (Cal. Penal Code § 18.5) and Tapia to argue the offense should not count as an aggravated felony for immigration purposes; the Ninth Circuit rejected state recharacterization as irrelevant to federal immigration classification.
- Because Prieto waived challenge to the IJ’s persecution-future-expectation finding, the court lacked jurisdiction to review that aspect and dismissed/denied relief on statutory aggravated-felony grounds.
Issues
| Issue | Prieto's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Prieto can challenge the IJ’s finding that he lacks a reasonable expectation of future persecution | Prieto did not contest this before BIA/Court (no argument preserved) | The IJ’s finding stands because it was not challenged | Court held Prieto waived this challenge; jurisdiction to review is forfeited |
| Whether the 1997 conviction is an aggravated felony (theft offense with >=1 year sentence) | Prieto argued state recharacterization (§ 18.5) or Tapia application prevents it from being counted as aggravated felony | Conviction is a theft offense and the actual sentence was 365 days, meeting federal "one year or more" threshold | Court held the conviction is an aggravated felony under INA because federal law looks to the actual sentence, not state labels |
| Whether California’s postconviction recharacterization/expungement affects federal immigration classification | Prieto argued § 18.5/retroactive application could alter immigration consequences | Government: state classification/expungement does not alter federal immigration consequences | Court held state recharacterization/expungement irrelevant for immigration purposes |
| Whether Tapia or similar state retroactivity doctrines change federal classification | Prieto relied on Tapia to argue retroactive benefit applies | Government: Tapia is inapplicable and state retroactivity doesn't control federal immigration law | Court held Tapia inapplicable here and state-law retroactivity does not change federal consequence |
Key Cases Cited
- Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006) (applying waiver doctrine when petitioner fails to challenge an IJ finding before the BIA)
- Sola v. Holder, 720 F.3d 1134 (9th Cir. 2013) (jurisdictional limits where administrative challenges were not preserved)
- Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. 2009) (theft offenses with sentences of at least one year qualify as aggravated felonies)
- Habibi v. Holder, 673 F.3d 1082 (9th Cir. 2011) (state classification of an offense as a misdemeanor is irrelevant for federal aggravated-felony analysis)
- Ramirez-Castro v. I.N.S., 287 F.3d 1172 (9th Cir. 2002) (expungement or state rehabilitative relief does not erase immigration conviction)
- Alberto-Gonzalez v. I.N.S., 215 F.3d 906 (9th Cir. 2000) ("one year or more" refers to the actual sentence imposed)
- Tapia v. Superior Court, 807 P.2d 434 (Cal. 1991) (state-law rule on retroactive application of beneficial changes to pending cases; inapplicable where conviction was final)