Mendoza v. Holder
2010 U.S. App. LEXIS 22108
| 9th Cir. | 2010Background
- Mendoza, native of Mexico, entered the United States without inspection circa December 2, 1983.
- On April 5, 2005, Mendoza was convicted in California for robbery under Cal. Penal Code § 211 and sentenced to 365 days in jail.
- DHS issued a Notice to Appear on October 3, 2005 charging removal for present without admission and for CIMT conviction.
- An IJ held Mendoza removable for CIMT and present without admission, and scheduled a hearing on a 212(h) waiver for adjustment of status.
- At the February 8, 2006 hearing, the IJ found Mendoza ineligible for relief, denied the 212(h) waiver, and ordered removal to Mexico.
- BIA affirmed the CIMT finding but did not address the 212(h) waiver; Mendoza petitioned for review challenging CIMT designation and 212(h) denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether robbery under Cal. Penal Code §211 is a CIMT | Mendoza contends §211 may not categorically be a CIMT. | Holder/agency has long held robbery under §211 is a CIMT. | Yes; robbery under §211 is a CIMT; BIA's determination is reasonable. |
| What standard governs review of CIMT determinations | N/A (not raised as separate, but Mendoza relies on standard of review). | BIA determinations deference under Chevron applied to CIMT rulings. | We review de novo the state-crime elements for CIMT and apply Chevron deference to BIA precedential CIMT determinations. |
| Whether the 212(h) waiver denial is subject to review | Mendoza argues for discretionary relief permitting status adjustment. | Judge considered the waiver and exercised discretion against relief; review is limited. | Petition on 212(h) waiver is denied for lack of reviewability; court lacks jurisdiction over discretionary denial. |
Key Cases Cited
- Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (question of law; CIMT determination reviewed de novo with deference to BIA)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (categorical approach for CIMT analysis)
- Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (comparison of crimes to determine CIMT via categorical approach)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc; application of Chevron deference to BIA CIMT determinations)
- Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (use of a modified categorical approach when necessary; discuss CIMT elements)
- Matter of G-R-, 2 I. & N. Dec. 733 (BIA 1946) (robbery/cime CIMT precedential stance)
- Matter of Kim, 17 I. & N. Dec. 144 (BIA 1979) (robbery as CIMT line of authority)
- Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (theft-related CIMT lineage)
- Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999) ( theft crimes as CIMTs; part of circuit precedent)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (S. Ct. 2007) (aiding and abetting within theft crime definition)