ALVAREZ GOMEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.

Zamir Gabriel ALVAREZ-GOMEZ, aka Josei Guema, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 18-73202

Decided: June 24, 2021

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges. Areg Kazaryan, Law Offices of Areg Kazaryan, Glendale, CA, for Petitioner Dawn S. Conrad, Trial 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 **

Zamir Gabriel Alvarez-Gomez, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ (“BIA”) order granting respondent's motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA's ruling on a motion to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.

In his opening brief, Alvarez-Gomez does not challenge the agency's determination that his 1999 conviction constitutes a crime involving moral turpitude. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party's opening brief are waived).

The BIA did not abuse its discretion in granting respondent's motion to reconsider, where Alvarez-Gomez's contention that his 1999 conviction is no longer a disqualifying conviction for cancellation of removal purposes under an amendment to California Penal Code § 18.5 is foreclosed by Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1089 (9th Cir. 2021) (holding that “California's amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days for purposes of state law, cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).”).

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.