On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078-018-615.
The opinion of the court was delivered by: T.G. Nelson, Circuit Judge
Argued and Submitted November 2, 2009-Pasadena, California.
Before: Thomas G. Nelson, Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges.
Severiano Vasquez-Hernandez petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his appeal from the Immigration Judge's ("IJ") order denying his motion to reopen.*fn1 The IJ held that Vasquez-Hernandez was statutorily ineligible under 8 U.S.C. § 1229b(b) for cancellation of removal based on his conviction for corporal injury to a spouse, an offense described in 8 U.S.C. § 1227(a)(2), and held that the petty offense exception in 8 U.S.C. § 1182(a)(2) was inapplicable to Vasquez-Hernandez. We deny the petition for review.
Vasquez-Hernandez is a native and citizen of Mexico who entered the United States illegally in July 1988. On August 8, 2002, Vasquez-Hernandez was convicted in the Orange County Superior Court of violating California Penal Code § 273.5, corporal injury to a spouse. The trial court sentenced him to fourteen days in jail, eight hours of community service, and three years probation. Under § 273.5, the sentence could not have exceeded one year.
On August 9, 2002, the Immigration and Naturalization Service ("INS"), now Immigration and Customs Enforcement ("ICE"), charged Vasquez-Hernandez as being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Vasquez-Hernandez conceded removability. In August 2004, the IJ pretermitted Vasquez-Hernandez's request for cancellation of removal, finding that Vasquez-Hernandez was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b) because he had been convicted of a crime of domestic violence as defined in 8 U.S.C. § 1227(a)(2)(E).
The IJ denied Vasquez-Hernandez's motion to reopen, finding that the petty offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii) did not apply to Vasquez-Hernandez's conviction. Therefore, the IJ found Vasquez-Hernandez statutorily ineligible for cancellation of removal. The BIA affirmed. Vasquez-Hernandez filed a timely petition for review with this court.
As the BIA adopted the IJ's decision and also added its own reasons, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005). We review the denial of a motion to reopen for abuse of discretion and questions of law de novo. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
The question here is whether the petty offense exception found in 8 U.S.C. § 1182(a)(2)(A)(ii) is applicable to an 8 U.S.C. § 1229b(b) cancellation of removal request if that request is otherwise barred by an alien's conviction for an ...