FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONSTANTINA RAMIREZ MOTA, 

Petitioner, No. 07-71880

v. Agency No. 

M A79-540-706 ICHAEL B. MUKASEY, Attorney

General of the United States, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued August 11, 2008

Submitted September 17, 2008

San Francisco, California

Filed September 17, 2008

Before: David R. Thompson and Kim McLane Wardlaw,

Circuit Judges, and Barry T. Moskowitz,* District Judge.

Opinion by Judge Thompson

*The Honorable Barry T. Moskowitz, United States District Judge for

the Southern District of California, sitting by designation. 

13137
COUNSEL

Eugenio Ramos, University of Santa Clara law student, supervised by Evangeline G. Abriel, supervising attorney, Santa

Clara, California, for the petitioner. 

13138 MOTA v. MUKASEY
Paul Fiorino, Department of Justice, Washington, D.C., for

the respondent. 

OPINION

THOMPSON, Senior Circuit Judge: 

Constantina Ramirez Mota, a native and citizen of Mexico,

petitions for review of an order of the Board of Immigration

Appeals (“BIA”) affirming an immigration judge’s decision

that she is ineligible for cancellation of removal due to her

conviction for inflicting injury upon a child, in violation of

California Penal Code § 273d. The BIA held that Mota’s conviction qualified as a crime involving domestic violence. We

have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant

the petition for review.

I. Background

On or about February 27, 1985, at the age of twenty, Constantina Ramirez Mota (“Mota”) entered the United States

illegally. The following year, she returned to Mexico briefly,

and then again entered the United States illegally, this time

with her two children. She has lived in the United States continuously ever since. She also has three children born in the

United States. 

On November 16, 1989, Mota was charged with the misdemeanor infliction of an injury upon a child in violation of section 273d of the California Penal Code. On January 22, 1990,

she was convicted and sentenced to thirty days in jail, three

years probation, and completion of parenting classes. 

On September 21, 2001, Mota was issued a Notice to

Appear in removal proceedings. On November 15, 2002,

through her attorney, she admitted the allegations in the

MOTA v. MUKASEY 13139
Notice to Appear and conceded being subject to removal as

charged. She also submitted an application for asylum, withholding of removal and CAT protection. She then withdrew

her application and instead requested Cancellation of

Removal for Certain Nonpermanent Resident aliens under

INA § 240B, 8 U.S.C. § 1229c. 

On March 25, 2004, at the scheduled merits hearing, Mota,

represented by a new attorney, informed the immigration

judge that she was not prepared to proceed because she had

not filed her documents in immigration court. The Immigration Judge (“IJ”) gave Mota an off-the-record opportunity to

sign and make changes to her cancellation application, and

then continued the merits hearing. On the same day, the

Department of Homeland Security filed in immigration court

a document evidencing Mota’s 1990 conviction. 

On June 24, 2005, Mota appeared pro se at her next scheduled merits hearing. She had fired her previous attorney. Mota

testified that her three children who had been born in the

United States on March 26, 1990, February 4, 1991, and July

5, 1992, would suffer “exceptional and extremely unusual

hardship” if she were removed to Mexico. When questioned

by the IJ, Mota admitted that she had been arrested in 1989,

and was convicted because she “hit” and “abuse[d] her children.” She also testified that she was jailed for “[two] weeks”

and lost custody of her children for “about a year” while she

attended mandatory classes in parenting. Her Application for

Cancellation of Removal and Adjustment of Status for Certain

Nonpermanent Residents similarly indicates that she was

“convicted” in 1990 for “Child Abuse,” and that she “served

[fifteen] days” in jail. Mota was again granted a continuance

of her hearing. 

On October 14, 2005, Mota appeared at her next scheduled

hearing with a new attorney who informed the IJ that he

would be requesting a continuance. The IJ stated that Mota’s

conviction documents established that she was statutorily

13140 MOTA v. MUKASEY
ineligible for cancellation of removal under 8 U.S.C.

§ 1229b(b)(1)(C), because she was convicted in 1990 of “Inflicting Injury Upon a Child,” a violation of California Penal

Code § 273d. The IJ concluded that this conviction rendered

her ineligible for cancellation relief under § 1227(a)(3)(E)(I),

because it was “a crime of child abuse.” The IJ then pretermitted Mota’s claim for cancellation of removal under section

240(A)(b)(1)(c) of the INA, but granted her voluntary departure. 

On November 11, 2005, Mota filed a timely Notice of

Appeal to the Board of Immigration Appeals (BIA). On April

20, 2007, the BIA dismissed her appeal. The BIA explained:

The respondent is ineligible for cancellation of

removal due to her conviction for a crime involving

domestic violence. The respondent states on appeal

that the offense for which she was convicted does

not impact her eligibility for cancellation of removal.

However, she has not contested the fact of conviction. She cites no precedent for the proposition,

implied in her brief statement on the Notice of

Appeal, that a conviction under section 273d of the

California Penal Code is not a crime delineated in

section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(outlining the statutory requirements for cancellation of removal,

including the requirement that the alien not have

been convicted of certain offenses). Since the record

reflects that the respondent is an inadmissible alien

who was convicted of a crime of domestic violence,

we see no basis on which to sustain this appeal. See

Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th

Cir. 2004). 

The BIA extended Mota’s period for voluntary departure.

Mota timely petitioned for review. 

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II. Discussion

Pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction

to review constitutional claims and questions of law presented

in all petitions for review, including those brought by individuals found removable based on certain enumerated crimes.

See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.

2004), as adopted by Fernandez-Ruiz v. Gonzales, 466 F.3d

1121, 1124 (9th Cir. 2006) (en banc). We review de novo

questions of law. See, e.g., Rosales-Rosales v. Ashcroft, 347

F.3d 714, 717 (9th Cir. 2003) (whether offense constitutes an

aggravated felony). “The BIA’s interpretation of immigration

laws is entitled to deference. However, we are not obligated

to accept an interpretation clearly contrary to the plain and

sensible meaning of the statute.” Kankamalage v. INS, 335

F.3d 858, 861 (9th Cir. 2003) (citation omitted). Additionally,

we “will not defer to BIA decisions that conflict with circuit

precedent.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th

Cir. 2003). 

To qualify for cancellation of removal, Mota must establish

that she:

(A) has been physically present in the United States

for a continuous period of not less than 10 years

immediately preceding the date of such application;

(B) has been a person of good moral character during such period; (C) has not been convicted of an

offense under section 1182(a)(2), 1227(a)(2), or

1227(a)(3) of this title (except in a case described in

section 1227(a)(7) of this title where the Attorney

General exercises discretion to grant a waiver); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s

spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for permanent residence. 

13142 MOTA v. MUKASEY
8 U.S.C. 1229b(b). 

[1] The Illegal Immigration Reform and Responsibility Act

of 1996 (IIRIRA) brought into existence section 237(a)(2)(E)

of the Immigration Nationality Act, 8 U.S.C. § 1227(a)(2)(E).

The effective date of this statute is September 30, 1996. After

the agency’s decision in Mota’s proceedings, the BIA held

that a conviction of a crime of domestic violence before September 30, 1996, does not make a petitioner ineligible for cancellation of removal. Matter of Gonzales-Silva, 24 I & N Dec.

218, 220 (BIA 2007) (“[W]e conclude that an alien whose

conviction precedes the effective date for section 237(a)(2)(E)

of the Act has not been ‘convicted under’ section 237(a)(2) of

the Act. While this is a close question, we find that an offense

can be one ‘described’ in section 237(a)(2)(E) only if the conviction for that offense occurred after September 30, 1996.”);

see also Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 350(b), 110 Stat. 3009, 3009-

640 (1996) (“The amendment [adding domestic violence as

grounds for deportation] shall apply to convictions . . . occurring after the date of the enactment of the act.”). We agree

with the BIA’s holding in Matter of Gonzales-Silva that a

conviction prior to September 30, 1996, is not included within

section 237(a)(2)(E) of the Act. 

[2] Because Mota’s conviction occurred on January 22,

1990, the BIA erred as a matter of law when it ruled that this

conviction made Mota ineligible for cancellation of removal.

We therefore grant the petition for review. We also grant the

parties’ request that we assign this case to our mediation unit

to give the parties the opportunity to resolve other aspects of

Mota’s cancellation claim. The mandate shall not issue until

ordered by this court following exhaustion of mediation proceedings. 

PETITION FOR REVIEW GRANTED; ASSIGNED

TO MEDIATION; ISSUANCE OF MANDATE WITHHELD.

MOTA v. MUKASEY 13143