MORALES SERRANO v. BARR (2019)

MEMORANDUM **

Mario Ernesto Morales-Serrano, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The agency did not err in determining that Morales-Serrano’s offense under California Health and Safety Code § 11377(a) constituted a “conviction” for immigration purposes, where he entered a plea of guilty and the judge imposed some form of punishment, penalty, or restraint on his liberty. See 8 U.S.C. § 1101(a)(48)(A); Reyes v. Lynch, 834 F.3d 1104, 1108 (9th Cir. 2016) (determining that the imposition of a non-suspended fine, requirements to attend Alcoholics Anonymous meetings, and restrictions on weapons possession and associations with drug users amounted to “some form of punishment, penalty, or restraint on the alien’s liberty”). Accordingly, the agency did not err in determining Morales-Serrano is ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).

In light of this determination, we need not address Morales-Serrano’s contentions that he is otherwise eligible for cancellation of removal, nor his assertion that his eligibility for cancellation of removal is impacted by Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (the courts and the agency are not required to make findings on issues the decision of which is unnecessary to the results). To the extent Morales-Serrano contends the immigration court lacked jurisdiction over his proceedings under Pereira, that contention is foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019) (notice to appear need not include time and date of hearing to vest jurisdiction in the immigration court).

We decline to follow, at Morales-Serrano’s urging, the dissent in Nunez-Reyes v. Holder, 646 F.3d 684, 703-16 (9th Cir. 2011) (Pregerson, Cir. J., dissenting), where Morales-Serrano has not shown the majority decision is clearly irreconcilable with any intervening higher authority. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003).

We lack jurisdiction to consider Morales-Serrano’s unexhausted contentions that his criminal guilty plea did not meet the requirements in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), or that he is eligible for a U Visa. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not presented in an alien’s administrative proceedings before the BIA.”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.