Cruz Villeda v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 31 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FERNANDO CRUZ VILLEDA, No. 21-642 Agency No. Petitioner, A200-694-727 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of Order of the Board of Immigration Appeals Submitted October 18, 2023** Pasadena, California Before: TASHIMA and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.*** Petitioner Fernando Cruz Villeda illegally entered the United States in May of 1998. In July 2010, petitioner returned to Mexico pursuant to a voluntary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. departure order, wherein he admitted to being in the United States illegally.

Thereafter, he re-entered the United States. In 2011, petitioner pled guilty to a felony, and on December 1, 2011, petitioner was sentenced to 36 months’ probation and ordered to “[s]erve 365 days in a San Bernardino County Jail facility, with credit for time served, a matter of 162 days.”

Subsequently, on December 23, 2011, petitioner was served with a Notice to Appear charging him as removable. Petitioner conceded his removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b) and voluntary departure under U.S.C. § 1229c(b)(1). On July 18, 2014, the Immigration Judge (“IJ”) found that petitioner was removable and denied his requests for cancellation of removal and voluntary departure because petitioner, having served 182 days in jail for his felony conviction, could not meet the statutory requirement to show “good moral character.” The IJ further denied his request for cancellation of removal because petitioner, having voluntarily departed the country in 2010, could not meet the requirement of “continuous physical presence.”

Petitioner then hired a new attorney to appeal the IJ’s decision. But instead of appealing the decision, the attorney filed a motion to reopen, which the IJ denied.

The BIA then dismissed petitioner’s appeal of the denial of the motion to reopen, and this court denied in part and dismissed in part a petition for review of that decision. In so doing, we held “[t]he agency did not err, abuse its discretion, or

On January 15, 2019, petitioner filed another motion to reopen with the BIA pursuant to Matter of Lozada, arguing that his prior counsel was ineffective for failing to file an appeal of the IJ’s initial July 18, 2014 decision. The BIA denied the motion to reopen. The BIA concluded that although “a failure to file an appeal would carry a ‘presumption of prejudice,’” petitioner failed to establish “plausible grounds for relief to warrant reopening” because he could not establish his good moral character because of the more than 180 days he had been incarcerated pursuant to his felony conviction. Petitioner then filed this petition for review.

“We review the denial of a motion to . . . reopen for an abuse of discretion.”

Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). Here, the BIA did not abuse its discretion in denying the motion to reopen. Since petitioner was “prevented from filing an appeal in an immigration proceeding due to counsel’s error,” he was entitled to “a presumption of prejudice.” See Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000) (citation and internal quotation marks omitted).

However, to prevail on his claim, petitioner must also show he has “plausible

The BIA appropriately found that petitioner did not “show[] plausible eligibility for cancellation of removal” because he could not meet the good moral character requirement. Petitioner argues the evidence does not establish he served more than 180 days in prison, and that the 162 days he spent in pretrial detention should not have been counted in calculating whether he served 180 days or more in jail for his conviction. Petitioner’s arguments are without merit. The 162 days he spent in pretrial detention were properly counted toward calculating whether he spent 180 days in a penal institution because his sentence, for the felony he pled guilty to, explicitly stated he was to “[s]erve 365 days in a San Bernardino County Jail facility, with credit for time served, a matter of 162 days.” See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir. 2008). Additionally, with his second motion to reopen, petitioner provided no new evidence suggesting that he spent less than 180 days in jail. If anything, the declaration he submitted only serves to confirm he spent at least 180 days in jail. Accordingly, our prior decision that petitioner’s evidence “confirmed that his period of incarceration statutorily barred him from establishing the good moral character required for cancellation of removal” stands.

PETITION DENIED.