Argued and Submitted, San Francisco, California: June
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078-464-072.
The panel granted Adrian Vargas Cervantes's petition for review from the Board of Immigration Appeals' decision finding him inadmissible based on his convictions for two crimes involving moral turpitude, and ineligible for an extreme hardship waiver or petty offense exception.
The panel held that the BIA correctly concluded that Vargas's California Penal Code § 422 conviction for threatening to commit a crime resulting in death or great bodily injury constituted a CIMT. The panel also concluded that the BIA's holding in In re Rotimi, 24 I. & N. Dec. 567 (BIA 2008), that the time an alien spends in the United States awaiting approval of an adjustment application does not count toward INA § 212(h)'s lawful residency requirement, is entitled to Chevron deference. The panel accordingly held that the BIA correctly found Vargas ineligible for a § 212(h) extreme hardship waiver.
The panel held, however, that the BIA erred by looking to evidence outside the record of conviction to conclude that Vargas was convicted of spousal abuse under CPC § 273.5(a). The panel also held that the BIA erred in concluding that Vargas did not qualify for the petty offense exception, and thus remanded for the BIA to consider whether Vargas is eligible for the exception.
Judy Lorenzo (argued), Law Offices of Judy Lorenzo, San Jose, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division; Aimee J. Carmichael (argued), Gregory M. Kelch, Attorneys, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Before: Mary M. Schroeder, Susan P. Graber, and Jay S. Bybee, Circuit Judges.
BYBEE, Circuit Judge:
Adrian Vargas Cervantes (" Vargas" ) petitions for review of a final order of removal. The Board of Immigration Appeals (" BIA" ) found Vargas inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), and ineligible for an exception under § 1182(a)(2)(A)(ii), because it found that Vargas was convicted of two crimes involving moral turpitude (" CIMTs" )--spousal abuse under California Penal Code § 273.5(a) and threatening to commit a crime resulting in death or great bodily injury under California Penal Code § 422. The BIA also determined that Vargas was ineligible for an extreme hardship waiver, applying its decision in In re Rotimi, 24 I. & N. Dec. 567 (BIA 2008). We hold that although the BIA correctly concluded that Vargas's conviction under § 422 is a CIMT, the BIA erred in concluding that Vargas was convicted of spousal abuse under § 273.5(a) by looking to evidence outside the record of conviction. We also conclude that the BIA's decision in Rotimi is entitled to deference, and therefore hold that the BIA correctly found Vargas ineligible for an extreme hardship waiver. We grant the petition and remand for further proceedings.
Vargas is a native and citizen of Mexico who became a lawful permanent resident on February 21, 2002. In 2006, Vargas pleaded nolo contendere and was convicted of violating California Penal Code § § 273.5(a) (inflicting corporal injury on a person in certain specified relationships) and 422 (threatening to commit a crime resulting in death or great bodily injury). He served sixty days' imprisonment.
In 2008, the Department of Homeland Security served Vargas with a Notice to Appear, charging that he was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because both convictions were for CIMTs. Vargas denied the factual allegations relating to the criminal convictions and argued that he qualified for either the petty offense exception set forth in Immigration and Nationality Act (" INA" ) § 212(a)(2)(A)(ii), or a waiver under ...