Matter of Leobardo DE JESUS-PLATON, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
January 17, 2025
29 I&N Dec. 7 (BIA 2025); Interim Decision #4086
FOR THE RESPONDENT: Arnold S. Jaffe, Esquire, Santa Barbara, California
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge, CREPPY and CLARK, Appellate Immigration Judges.
CREPPY, Appellate Immigration Judge:
The respondent, a native and citizen of Mexico, appeals the Immigration Judge‘s decision dated December 19, 2019, which found that the respondent was ineligible for cancellation of removal for having been convicted of a crime involving moral turpitude (“CIMT“). Section 240A(b)(1)(C) of the Immigration and Nationality Act (“INA“),
Initially, the Immigration Judge determined that the respondent‘s 2012 California conviction for making criminal threats in violation of section 422 of the California Penal Code is a CIMT for which a 1-year sentence may be imposed and made the respondent ineligible for cancellation of removal. See1
Latter-Singh v. Holder, 668 F.3d 1156, 1163 (9th Cir. 2012); see also INA § 237(a)(2)(A)(i)(II),
After the Board‘s remand, the Board published Matter of Velasquez-Rios, which held that the amendment to section 18.5 of the California Penal Code did not affect the applicability of section 237(a)(2)(A)(i)(II) of the INA,
We affirm the Immigration Judge‘s decision based on Matter of Velasquez-Rios, 27 I&N Dec. at 473, determining that section 18.5 of the California Penal Code does not make the respondent eligible for cancellation of removal. As found by the Immigration Judge, the maximum possible sentence the respondent could have received for his offense at the time of his conviction was imprisonment for 1 year. Thus, under section 237(a)(2)(A)(i)(II) of the INA,
The respondent argues that Matter of Velasquez-Rios violates the Tenth Amendment to the United States Constitution as well as principles of
The respondent further argues that Matter of Velasquez-Rios preempts State law authority. However, as determined by the court in Velasquez-Rios v. Wilkinson, there is no issue of preemption because Matter of Velasquez-Rios “presents no conflict between state and federal law.” 988 F.3d at 1088. Matter of Velasquez-Rios “has no bearing on whether California may, for purposes of its own state law, retroactively reduce the maximum sentence available for misdemeanor convictions.” Id. We thus conclude that Matter of Velasquez-Rios presents no preemption issue relative to the California statute.
The respondent argues that Matter of Velasquez-Rios is inconsistent with Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005), and Matter of Song, 23 I&N Dec. 173 (BIA 2001). Those cases, however, involved nunc pro tunc sentence modifications from a State court, which is not at issue in the instant case. See Velasquez-Rios, 988 F.3d at 1088. Additionally, those cases were overruled by the Attorney General. See Matter of Thomas and Thompson, 27 I&N Dec. 674, 686 (A.G. 2019) (explaining that full faith and credit principles were not implicated in vacated conviction cases because an Immigration Judge is interpreting the definition of “conviction” under the INA, not “reevaluating or otherwise questioning the validity of the state-court judgment.“).
The respondent also argues that the Board‘s reliance on McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016), is misplaced. In Velasquez-Rios v. Wilkinson, the court recognized that these cases were not directly controlling because they dealt with criminal sentencing statutes. 988 F.3d at 1087. Nevertheless, the court found the reasoning in those cases persuasive. Id. at 1086-87. We find the respondent‘s argument that these cases are inappropriate for the instant case to be unavailing.
The respondent argues that Latter-Singh v. Holder, 668 F.3d at 1163, is no longer controlling authority and that his conviction is not categorically for a CIMT. We disagree. We find that the court‘s decision in Latter-Singh, which concluded that section 422 of the California Penal Code was a CIMT, to be controlling authority in the Ninth Circuit. In Flores-Vasquez v. Garland, 80 F.4th 921, 928 (9th Cir. 2023) (citing Latter-Singh, 668 F.3d at 1162), the court explained that section 422 was categorically a CIMT because it requires both an evil or malicious intent and the infliction of actual substantial harm on another. The respondent does not meaningfully distinguish his case from Latter-Singh. We affirm that the respondent‘s conviction is for a CIMT.
The respondent further argues that he did not have a conviction prior to the enactment of section 18.5 of the California Penal Code because his sentence was not completed at that time. Neither the Board nor the INA requires that an individual have completed their criminal sentence before he can be considered to have been convicted of a crime. See INA § 101(a)(48)(A),
During the pendency of the respondent‘s appeal, the State court granted the respondent‘s petition for post-conviction relief pursuant to sections 1016.5 and 1473.7 of the California Penal Code and permitted the respondent to withdraw his guilty plea to the sole conviction making him ineligible for cancellation of removal. Controlling precedent in this jurisdiction holds that section 1473.7(a)(1) “provides a vehicle to vacate a conviction to address a substantive or procedural error that renders a conviction ‘legally invalid’ [and] does not permit a state court to vacate a conviction to alleviate any immigration consequences arising from the conviction or sentence.” Bent v. Garland, 115 F.4th 934, 940 (9th Cir. 2024) (emphasis omitted). The respondent‘s new evidence in support of a remand, however, states that his conviction was vacated pursuant to section 1473.7
We consider the respondent‘s new evidence of post-conviction relief in support of a remand under the standard for motions to reopen. See Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992) (applying the standards for motions to reopen to motions to remand). We determine that the respondent‘s new evidence is material and was previously unavailable.
The respondent‘s evidence does not demonstrate that his conviction was vacated for a procedural or substantive defect in the underlying criminal proceedings and not for reasons of rehabilitation or immigration hardship. See Matter of Thomas and Thompson, 27 I&N Dec. 674, 689-90 (A.G. 2019); Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003), rev‘d on other grounds by 465 F.3d 263 (6th Cir. 2006); cf. Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006) (holding that the government bears the burden in the context
ORDER: The respondent‘s appeal is dismissed.
FURTHER ORDER: The respondent‘s motion for a remand is denied.
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Notes
(a) A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any of the following reasons:
(1) The conviction or sentence is legally invalid due to prejudicial error damaging the moving party‘s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.
(3) A conviction or sentence was sought, obtained, or imposed on the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.