Martin Herrera v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN HERRERA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-73364
Agency No. A041-308-542
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Martin Herrera, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review
for substantial evidence the agency’s factual findings, and review de novo
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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questions of law and constitutional claims. Khan v. Holder, 584 F.3d 773, 776 (9th
Cir. 2009). We deny the petition for review.
Substantial evidence supports the agency’s determination that Herrera was
convicted under Cal. Penal Code § 273.5(a) and sentenced to 365 days in jail. See
8 U.S.C. § 1229a(c)(3)(B) (listing permissible documents for proof of conviction).
Because a conviction for violating Cal. Penal Code § 273.5 is categorically a crime
of violence under 18 U.S.C. § 16(a), see Banuelos-Ayon v. Holder, 611 F.3d 1080,
1083 (9th Cir. 2010), and Herrera was sentenced to a term of imprisonment of one
year, the agency did not err in concluding that Herrera had been convicted of an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and therefore was statutorily
ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Herrera’s
contention that his offense may not be considered an aggravated felony because it
was classified as a misdemeanor under California law is unavailing. See United
States v. Gonzalez-Tamariz, 310 F.3d 1168, 1170-71 (9th Cir. 2002). Herrera has
waived any challenge to the agency’s determination that his conviction is also a
crime involving moral turpitude. Martinez-Serrano v. INS, 94 F.3d 1256, 125960
(9th Cir. 1996).
Herrera’s contention that the agency’s decision violated its own regulations
fails because he is unable to demonstrate prejudice. See Kohli v. Gonzales, 473

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F.3d 1061, 1066-67 (9th Cir. 2007) (“When presented with allegations that an
agency has violated its own regulation . . . the claimant must show he was
prejudiced by the agency’s mistake.”). Herrera’s due process challenge to the
agency’s decision also fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and prejudice to prevail on a due process claim).
Herrera’s remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED.

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