Saleh v. Mukasey
Saleh v. Mukasey
Opinion of the Court
MEMORANDUM
Abdul A. Saleh, a native and citizen of Afghanistan, petitions for review of an order of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“LJ”) decision denying his application for lawful permanent resident cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252, Femandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006), and we review questions of law de novo, id. We dismiss the petition for review in part, deny it in part, grant it in part, and remand for further proceedings.
We lack jurisdiction to review Saleh’s claim that the government did not show that his conviction occurred after September 30, 1996, as this contention was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (exhaustion is mandatory and jurisdictional).
We reject Saleh’s contention that he is not removable because 8 U.S.C. § 1227(a)(2)(E) was retroactively applied to him. His conviction, which is the relevant proscribed act, occurred after the effective date of the statute. See Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1132 (9th Cir. 2007) (“[T]he past relevant conduct is an alien’s decision whether to enter a guilty plea or to proceed to trial, and not the commission of the underlying criminal conduct.”).
The IJ erred in applying 8 U.S.C. § 1229b(d)(l)(B) to deny Saleh cancellation of removal, because “crimes of domestic violence” are not “referred to in section 212(a)(2)” of the Immigration and Nationality Act. See Matter of Campos-Torres, 22 I. & N. Dec. 1289, 1295 (BIA 2000) (en banc) (offenses making aliens removable under 8 U.S.C. § 1227(a)(2) that are “not referred to in section 212(a)(2) of the Act [do] not ‘stop time’ under section 240A(d)(l)”). We therefore remand for reconsideration of Saleh’s application for cancellation of removal.
PETITION FOR REVIEW DISMISSED in part; DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.