NOT FOR PUBLICATION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) qualifie s as a crime involving moral turp itude

* 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 APPEALS2

(“CIMT”) under 8 U.S.C. § 1227(a)(2) , render ing 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 . W e deny the petition

. 1. Jimenez

- Morales argues that his conviction for assault with a deadly weapon in violation of Cal ifornia Penal Code § 245(a)(1) d oes not qualify as a CIMT that would disqualify him from eligibility for cancellation of removal. The
BIA conclud ed 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 entit led to Chevron deference , we recently held
tha t “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. There fore, 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 3643

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 retroa ctively 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 look s to the maximum possible sentence at the time of conviction

. I n 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 “convicte d 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 in4

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 [noncitize n] 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. 202 0)

. We
recentl y 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.