FLORES MARTINEZ v. BARR (2019)

MEMORANDUM ***

Petitioner Alejandro Flores-Martinez entered the United States without valid documentation and was subsequently convicted of petty theft in 1990 and 1994. The Government initiated removal proceedings and Petitioner applied for cancellation of removal and other relief. Petitioner initially conceded that he was statutorily ineligible for cancellation of removal based on his two prior petty theft convictions. The Immigration Judge (“IJ”) pretermitted the request for cancellation and denied Petitioner’s other requests for relief. Petitioner appealed the IJ’s denial and the Board of Immigration Appeals (“BIA”) dismissed the appeal. Petitioner moved for reconsideration of the BIA’s dismissal, alleging that a change of law affected Petitioner’s application for cancellation of removal. The BIA denied the motion and the instant appeal followed. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

We review de novo the BIA’s determination of questions of law. Castillo-Cruz v. Holder, 581 F.3d 1154, 1158–59 (9th Cir. 2009). BIA rulings on motions to reopen and reconsider are reviewed for abuse of discretion and are “reverse[d] only if the Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005).

Petitioner urges this Court to overturn this Circuit’s long-standing precedent that petty theft under Cal. Penal Code (“CPC”) § 484(a) is categorically a crime involving moral turpitude (“CIMT”), and thus, an offense that would disqualify an applicant for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Petitioner argues that since Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), held that California petty theft is not a categorical match to the federal definition of theft, then it should follow that his petty theft convictions are not categorically CIMTs.

“[W]e have consistently held that acts of petty theft constitute crimes of moral turpitude” under California law. Castillo-Cruz, 581 F.3d at 1160 (collecting cases). Lopez-Valencia v. Lynch did not change or affect this holding. Accordingly, the BIA did not err in denying Petitioner’s motion for reconsideration.

PETITION DENIED.