United States 9th Circuit Court of Appeals Reports

Unpublished

ANCHETA v. GONZALES, 03-73883 (9th Cir. 1-4-2007) MANUEL
CALDERON ANCHETA, SR., Petitioner, v. ALBERTO R. GONZALES,
Attorney General, Respondent. No. 03-73883, Agency No.
A31-378-653. United States Court of Appeals, Ninth
Circuit. Argued and Submitted November 14, 2006 Honolulu,
Hawaii. January 4, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] MEMORANDUM[fn*]

[fn*] This disposition is not appropriate for publication
and is not precedent except as provided by 9th Cir. R.
36-3.

On Petition for Review of an Order of the Board of
Immigration Appeals.

Before: TROTT, WARDLAW, and W. FLETCHER, Circuit Judges.

Manuel Calderon Ancheta, Sr., a Philippine national,
petitions for review of a Board of Immigration Appeals
(“BIA”) order summarily affirming the Immigration Judge’s
(“IJ”) order of removal and denial of cancellation of
removal.

The IJ found Ancheta removable under 8 U.S.C. §
1227(a)(2)(A)(ii), INA § 237(a)(2)(A)(ii), because
he had been convicted of two crimes involving moral
turpitude. Ancheta argues that the second conviction
charged, for third-degree theft of services, did not
involve moral turpitude. Under 8 U.S.C. §
1252(a)(2)(C), INA § 242(a)(2)(C), we generally lack
jurisdiction to review an order of removal made pursuant to
§ 237(a)(2)(A)(ii). However, we may consider, as
part of our jurisdictional inquiry, whether a crime
involves moral turpitude. Carty v. Ashcroft, 395 F.3d 1081,
1082-83 (9th Cir. 2005). We review this question de novo.
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.
2005). Applying the categorical approach articulated in
Taylor v. United States, 495 U.S. 575 (1990), we conclude
that the statutes of conviction — Hawaii Revised
Statutes § 708-830(4) and 708-832(1)(a) —
necessarily include a morally turpitudinous element of
intent to defraud or to deprive another of services. See
Carty, 395 F.3d at 1084; cf. Nevarez-Martinez v. INS, 326
F.3d 1053, 1055 (9th Cir. 2003). Therefore, because Ancheta
has been convicted of two crimes involving moral turpitude,
we lack jurisdiction to review his order of removal. Carty,
395 F.3d at 1082-83.

Ancheta also argues that the IJ incorrectly applied a
heightened standard to his application for cancellation of
removal under 8 U.S.C. § 1229b(a), INA §
240A(a), and violated his due process rights by engaging in
improper speculation about his probation violation and by
denying him an opportunity to respond to her concerns about
back taxes he owed. We lack jurisdiction to review an IJ’s
discretionary determination whether to grant cancellation
relief. Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th
Cir. 2003). However, we may review purely legal questions,
id., and due process claims, Martinez-Rosas v. Gonzales,
424 F.3d 926, 930 (9th Cir. 2005), arising from
cancellation proceedings. We review these de novo. Id.

The BIA has held that once an alien establishes eligibility
for cancellation relief under § 240A(a), the IJ must
exercise his or her discretion under the general standard
developed in the context of waiver of deportation under
former 8 U.S.C. § 1182(c), INA § 212(c).
Matter of C-V-T, 22 I & N Dec. 7, 11 (BIA 1998). That is,
the IJ must review the record as a whole, and “balance the
adverse factors evidencing the alien’s undesirability as a
permanent resident with the social and humane
considerations presented in his (or her) behalf to determine
whether the granting of . . . relief appears in the best
interest of this country.” Id. (internal quotation marks
omitted, ellipsis in original). But the BIA has further
held that, in contrast to § 212(c), those with
criminal histories need not show “unusual or outstanding
equities” to receive cancellation relief under §
240A(a). Matter of Sotelo-Sotelo, 23 I & N Dec. 201, 204
(BIA 2001) (en banc).

Here, the IJ recognized that her cancellation determination
should be governed by Matter of C-V-T and Matter of
Sotelo-Sotelo. Nonetheless, she stated that “some cases may
have to involve unusual or outstanding equities” for relief
to issue, and she appears to have required Ancheta to make
such a heightened showing. Therefore, we grant Ancheta’s
petition with regard to the denial of cancellation of
removal, and remand for further proceedings consistent with
the correct legal standard. See Rivas-Gomez v. Gonzales,
441 F.3d 1072, 1079 (9th Cir. 2006).

Because we hold that the denial of cancellation was
improper based on the IJ’s application of an improper
standard, we need not reach Ancheta’s due process claims.

PETITION GRANTED IN PART. REMANDED.