116 F.4th 1032
9th Cir.2024Background
- Christian Lopez, a native and citizen of Mexico, was brought to the U.S. as a child after his mother fled domestic violence in Mexico.
- Lopez lived in the U.S. for years without lawful status and later received derivative nonimmigrant (T-5) status, which lapsed when he was 19.
- In 2019, Lopez was convicted on four counts of petit larceny under Reno Municipal Code (RMC) § 8.10.040, alongside a felony weapons charge.
- The Department of Homeland Security initiated removal proceedings based on his larceny convictions, which they classified as crimes involving moral turpitude (CIMTs).
- Lopez sought to terminate removal and applied for asylum, withholding of removal, and CAT relief, all of which were denied by the IJ, and the Board of Immigration Appeals (BIA) affirmed.
- Lopez petitioned for review to the Ninth Circuit.
Issues
| Issue | Lopez's Argument | Government's Argument | Held |
|---|---|---|---|
| Is RMC § 8.10.040 categorically a CIMT? | RMC does not require intent to permanently deprive or substantially erode property rights. | RMC should be construed like Nevada state law, which does require such intent. | RMC § 8.10.040 is categorically a CIMT; convictions valid basis for removal. |
| Does the lack of a pardon process bar removability? | Cannot be removed for a CIMT conviction if no pardon is available for that offense. | Pardon availability is irrelevant; only actual grant of pardon bars removability. | Pardon need not be available; absence of process does not bar removal. |
| Do multiple larcenies constitute a "single scheme"? | His offenses were part of a single scheme, so don’t count as separate CIMTs for removal. | Distinct criminal acts, even if similar and close in time, are separate for removal count. | Four larceny convictions are distinct; do not constitute a "single scheme." |
| Was Lopez’s asylum application timely or excusable? | Claimed exception to one-year deadline due to lack of awareness and disability. | Claims did not meet statutory standards; evidence of disability not material or new. | Application untimely; no “changed” or “extraordinary” circumstances found. |
Key Cases Cited
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations may be persuasive but are not controlling)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (defines generic theft for immigration purposes)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (ambiguities in criminal removal cases construed in favor of the noncitizen)
- Costello v. INS, 376 U.S. 120 (1964) (addressed removability based on pre-naturalization conduct)
- Szonyi v. Whitaker, 915 F.3d 1228 (9th Cir. 2019) (adopts BIA’s interpretation of "single scheme" for CIMT removability)