Planes v. Holder, 2011 U.S. App. LEXIS 13648

Planes, a Philippines native and current lawful permanent resident, was convicted in 1998 of delivering or making a check with insufficient funds with intent to defraud under California Penal Code § 476a(a).
In 2004, Planes pled guilty to possessing 15 or more access devices with intent to defraud under 18 U.S.C. § 1029(a)(3).
The Ameline remand directed the district court to reconsider Planes's sentence in light of advisory guidelines; it did not vacate the conviction or sentence.
In 2005, the INS issued a notice to appear alleging removability under § 1227(a)(2)(A)(ii) for two crimes involving moral turpitude not arising from a single scheme.
The IJ denied removal and cancellation of removal; the BIA affirmed; Planes challenged via petition for review in the Ninth Circuit.
The Ninth Circuit dismissed the petition for review, holding (a) Planes is convicted of two CIMTs, each with potential year-long sentences, and (b) the discretionary cancellation ruling is review-barred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Planes was convicted of two CIMTs for immigration purposes	Planes argues § 1029(a)(3) not final, thus not a conviction for § 1227(a)(2)(A)(ii).	HOLDER contends final judgment of guilt suffices under § 1101(a)(48)(A) and the convictions meet CIMT criteria.	Conviction of § 1029(a)(3) constitutes a final conviction for immigration purposes.
Whether the two offenses are categorically crimes involving moral turpitude	Convictions for § 476a(a) and § 1029(a)(3) may not be CIMTs.	Fraud-based offenses categorically constitute CIMTs.	Both offenses are categorically crimes involving moral turpitude.
Whether the court has jurisdiction to review the BIA's final removal order under § 1252(a)(2)(C)	Lack of jurisdiction over discretionary cancellation and CIMT determinations should be reviewable.	§ 1252(a)(2)(C) bars review where two CIMTs and one-year sentences apply, with limited exceptions.	Court lacks jurisdiction to review the final removal order under § 1252(a)(2)(C).
Whether the IJ's discretionary denial of cancellation of removal is reviewable	BIA erred by considering a non-final sentencing issue and CIMT determinations.	No colorable legal or constitutional challenge to cancellation denial was raised.	Discretionary cancellation denial is review-barred; dismiss.

Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (fraud crimes are CIMTs per se (en banc concurrence discussed but majority rule controls))
Ameline, 409 F.3d 1073 (9th Cir. 2005) (procedural remand for Booker error in sentencing)
Pino v. Landon, 349 U.S. 901 (1955) (finality requirement for deportation under pre-IIRIRA framework (mem.))
Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981) (finality of conviction and immigration consequences prior to IIRIRA)
Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (finality and review of convictions for immigration purposes)
Hernandez-Almanza v. INS, 547 F.2d 100 (9th Cir. 1976) (early CIMT considerations for immigration)
Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324 (2d Cir. 2007) (IIRIRA conviction finality interpretation post-2001)
Moosa v. INS, 171 F.3d 994 (5th Cir. 1999) (finality under § 1101(a)(48)(A) after IIRIRA)
Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004) (interpretation of finality under conviction statute)
Saenz-Gomez v. United States, 472 F.3d 791 (10th Cir. 2007) (defense against reading finality into conviction)
Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (finality concepts in immigration context)