MERCADO RAMIREZ v. WHITAKER (2018)

MEMORANDUM *

Jose Jesus Mercado Ramirez petitions for review of his removal proceedings in the Board of Immigration Appeals (Board). We have jurisdiction under 28 U.S.C. § 1252, and we deny the petition.

Mercado argues that the Board erred by retroactively applying In re Leal, 26 I. & N. Dec. 20, 27 (B.I.A. 2012) (Leal I ) to conclude that his Arizona conviction for felony endangerment was a crime involving moral turpitude, that we should not apply our decision in Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014) (Leal II ) to conclude that Arizona endangerment is a crime involving moral turpitude for similar reasons, and that the definition of “crime involving moral turpitude” is unconstitutionally vague as applied to non-fraudulent crimes. Mercado's first and third arguments our foreclosed by our decision in Olivas-Mottas v. Whitaker, 910 F.3d 1271, No. 14-70543, 2018 WL 6627882 (9th Cir. 2018). As to Mercado's second argument, we did not decide in Olivas-Mottas whether Leal II changed the law and thus had a retroactive effect. But we do not need to decide that issue in this case because Leal I did not change the law, and Mercado has not argued to us that the Board erred by applying Leal I for any reason other than retroactivity and vagueness.

PETITION DENIED.

For the reasons stated in my dissent in Olivas-Motta v. Whitaker, 910 F.3d 1271, No. 14-70543, 2018 WL 6627882 (9th Cir. 2018), I would grant Jose Jesus Mercado Ramirez's petition for review and remand so that the Board of Immigration Appeals can analyze the status of his conviction for reckless endangerment under the law as it stood in 2001, when he pleaded guilty.