NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUGO JIMENEZ-MORALES, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70766 

Agency No. A200-626-301 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 13, 2023**

San Francisco, California

Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.

Hugo Jimenez-Morales, a native and citizen of Mexico, petitions for review 

of a decision of the Board of Immigration Appeals (“BIA”) affirming the 

immigration judge’s (“IJ”) determination that Jimenez-Morales’ conviction under 

California Penal Code § 245(a)(1) qualifies as a crime involving moral turpitude 

* 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).

FILED

FEB 16 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

(“CIMT”) under 8 U.S.C. § 1227(a)(2), rendering him ineligible for cancellation of 

removal pursuant to 8 U.S.C. § 1229b(b)(1)(C). We have jurisdiction under 

8 U.S.C. § 1252. We deny the petition. 

1. Jimenez-Morales argues that his conviction for assault with a deadly 

weapon in violation of California Penal Code § 245(a)(1) does not qualify as a 

CIMT that would disqualify him from eligibility for cancellation of removal. The 

BIA concluded that Jimenez-Morales’ conviction is a categorical CIMT based on 

its decision in Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017). “[W]e must uphold the 

BIA’s determination that a given offense is a crime involving moral turpitude if it 

‘is based on a permissible construction[]’ . . . of the phrase ‘crime involving moral 

turpitude.’” Safaryan v. Barr, 975 F.3d 976, 982 (9th Cir. 2020) (quoting Chevron 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). 

Concluding that Matter of Wu is entitled to Chevron deference, we recently held 

that “the BIA correctly determined that [a petitioner’s] conviction under 

§ 245(a)(1) was for a [CIMT] and that he was therefore inadmissible under the 

[Immigration and Nationality Act].” Id. at 988. Therefore, Jimenez-Morales’ 

conviction under § 245(a)(1) qualifies as a CIMT.

2. On January 1, 2015, the California legislature enacted California 

Penal Code § 18.5, which reduced the maximum jail sentences for misdemeanor 

convictions from “up to or not exceeding one year” to “a period not to exceed 364 
3 

days.” Cal. Penal Code § 18.5 (2015). Two years later, effective January 1, 2017, 

the California legislature amended § 18.5 to apply retroactively to all misdemeanor 

convictions, regardless of whether the conviction was finalized on or before the 

statute’s original enactment date. Cal. Penal Code § 18.5. Jimenez-Morales 

argues that this reduction applies retroactively to his conviction under § 245(a)(1) 

for purposes of § 1227(a)(2)(A)(i). See 8 U.S.C. § 1227(a)(2)(A)(i)(II). In 

rejecting this argument, the BIA relied on its decision in Matter of Valesquez-Rios, 

27 I. & N. Dec. 470, 473 (BIA 2018), in which it held that the state amendment did 

not affect the applicability of § 1227(a)(2)(A)(i)(II) to a past CIMT conviction 

because the BIA looks to the maximum possible sentence at the time of conviction. 

In Velasquez-Rios v. Wilkinson, we affirmed the BIA, “hold[ing] that California’s 

amendment to § 18.5 of the California Penal Code . . . cannot be applied 

retroactively for purposes of § 1227(a)(2)(A)(i).” 988 F.3d 1081, 1089 (9th Cir. 

2021). Accordingly, Jimenez-Morales remains “convicted of a crime for which a 

sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II).

3. Finally, Jimenez-Morales contends that his conviction under 

§ 245(a)(1) was not for “an offense under” § 1227(a)(2)(A)(i) that would bar him 

from cancellation of removal because he did not commit the CIMT within five 

years of admission to the United States. See 8 U.S.C. §§ 1229b(b)(1)(C), 

1227(a)(2)(A)(i)(I). The BIA rejected this argument based on its decision in 
4 

Matter of Ortega-Lopez, 27 I. & N. Dec. 382 (BIA 2018). There, the BIA

concluded that, “pursuant to the cross-reference in § 1229b(b)(1)(C), [a noncitizen] 

is ineligible for cancellation of removal if the [noncitizen] has been convicted of a 

[CIMT] for which a sentence of one year or more may be imposed, regardless

whether the [noncitizen] meets the immigration prerequisites for inadmissibility or 

deportability.” Ortega-Lopez v. Barr, 978 F.3d 680, 693 (9th Cir. 2020). We 

recently concluded that the BIA’s interpretation of § 1229b(b)(1)(C) in Matter of

Ortega-Lopez is permissible and therefore entitled to Chevron deference. Id. at 

690–93. We thus hold that Jimenez-Morales’ § 245(a)(1) conviction was “an 

offense under” § 1227(a)(2)(A)(i) even though he was not convicted of a CIMT 

committed within five years of admission to the United States.

PETITION DENIED.