HERNANDEZ ROJAS v. BARR (2019)

United States Court of Appeals, Ninth Circuit.

Jose Filemon HERNANDEZ-ROJAS, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-70161

Decided: October 29, 2019

Before: CALLAHAN and KLEINFELD, Circuit Judges, and RESTANI,** Judge. Mario Acosta, Jr., Esquire, Attorney, Law Office of Mario Acosta, Jr., Santa Fe Springs, CA, for Petitioner Karen L. Melnik, Trial Attorney, Matthew Allan Spurlock, Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM ***

Jose Filemon Hernandez-Rojas, a native and citizen of Mexico, petitions for review of the board of Immigration Appeals’ decision dismissing his appeal from an immigration judge’s order denying cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a conviction constitutes a crime involving moral turpitude. Tall v. Mukasey, 517 F.3d 1115, 1119 (9th Cir. 2008). We deny the petition for review.

First, we are not persuaded by the Government’s argument that Hernandez-Rojas failed to sufficiently raise his claim before the BIA. Although we may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), the exhaustion doctrine is not employed in a formalistic manner and it does not demand perfect precision. Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). When, as here, an issue was clearly raised before the BIA and the BIA decides the issue, that issue is exhausted, even if the petitioner makes slightly different or more expansive arguments in support of that issue before this court. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008).

The BIA did not err in determining that Hernandez-Rojas’ convictions under California Penal Code § 647(b) are crimes involving moral turpitude, and therefore that he is ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C) (barring certain exceptions, aliens convicted of crimes involving moral turpitude are not eligible for cancellation of removal). We are not persuaded by Hernandez-Rojas’ contention that precedent establishing his convictions are crimes involving moral turpitude do not control. See Rohit v. Holder, 670 F.3d 1085, 1091 (9th Cir. 2012) (holding that solicitation of prostitution under California Penal Code § 647(b) constitutes a crime involving moral turpitude).

As a three-judge panel, we lack authority to overrule Rohit. Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011).

PETITION FOR REVIEW DENIED.