Renzo Chiarella-Cerron v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENZO CHIARELLA-CERRON,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-71832
B.I.A. No. A095-775-192
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 9, 2015 **
San Francisco, California
Before: GILMAN, *** GRABER, and WATFORD, Circuit Judges.
Petitioner Renzo Chiarella-Cerron seeks review of the Board of Immigration
Appeals’ ("BIA") dismissal of his appeal from the immigration judge’s ("IJ") entry
of a final order of removal.
FILED
JUL 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.

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1. Substantial evidence supports the BIA’s adverse credibility
determination. See Singh v. Holder, 638 F.3d 1264, 1268–69 (9th Cir. 2011)
(stating the standard of review). In an effort to convince the IJ that his removal
would result in hardship to his family, thus justifying discretionary relief from
removal to Peru, Petitioner testified that his wife speaks only a "little bit" of
Spanish and does not read or write in Spanish. To the contrary, Petitioner’s wife
testified that she speaks Spanish fluently and reads and writes in Spanish. In this
case governed by the REAL ID Act, we must uphold the adverse credibility
determination; and we note that this inconsistency goes to the heart of Petitioner’s
claim for relief. We therefore deny the petition with respect to the adverse
credibility determination.
2. The BIA correctly held that Petitioner was convicted of conspiracy to
commit assault, in violation of California Penal Code section 245(a)(1). Petitioner
pleaded nolo contendere to "Count 2" and admitted to the allegations in the felony
complaint. The complaint alleged, in Count 2, that Petitioner and others "did
conspire together to commit a crime, a violation of section 245(a)(1) of the Penal
Code of the State of California." Accordingly, we deny the petition with respect to
the BIA’s identifying the statute of conviction.
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3. The BIA held that Petitioner was inadmissible for having been convicted
of a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I), and that,
accordingly, Petitioner was ineligible for adjustment of status pursuant to 8 U.S.C.
§ 1255(i). The BIA reasoned that it was bound by our decision in Gonzales v.
Barber, 207 F.2d 398 (9th Cir. 1953), aff’d on other grounds, 347 U.S. 637 (1954),
that an assault in violation of California Penal Code section 245(a)(1) is a crime
involving moral turpitude.
Although correct at the time, the BIA’s holding has been overtaken by recent
developments. In Ceron v. Holder, 747 F.3d 773, 779–85 (9th Cir. 2014) (en
banc), we overruled Barber and related cases. We remanded to the BIA to
determine, in the first instance, whether assault in violation of California Penal
Code section 245(a)(1) is a crime involving moral turpitude, in part because "we
have created error in the BIA’s decision and have thwarted the ordinary procedure
through which the BIA has the first opportunity to assess whether a crime involves
moral turpitude." Ceron, 747 F.3d at 784. The same reasoning applies here, and
we are bound by Ceron. Accordingly, we grant the petition with respect to the
moral turpitude issue and remand for further proceedings consistent with Ceron.
4. Pursuant to our recent decision in Torres-Valdivias v. Lynch, 786 F.3d
1147, 1152–53, (9th Cir. 2015), we lack jurisdiction over Petitioner’s argument
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that the BIA erred in determining that he committed a "violent or dangerous crime"
under In re Jean, 23 I. & N. Dec. 373 (Att’y Gen. 2002), and 8 C.F.R. § 1212.7(d).
We dismiss the petition with respect to the BIA’s denial of a waiver of
inadmissibility.
Petition DENIED in part, GRANTED in part, and DISMISSED in part.
The parties shall bear their owns costs on appeal.
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