                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 08 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


NORKA BLACKWELL-HILL,                            No. 12-74009

               Petitioner,                       Agency No. 77-134-913

  v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                        Argued and Submitted April 8, 2015
                               Pasadena, California

Before: KLEINFELD and CLIFTON, Circuit Judges and SEEBORG,** District
Judge.




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


         **
            The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
      Norka Blackwell-Hill, a citizen of Bulgaria, petitions for review of an order

by the Board of Immigration Appeals (“BIA”) affirming the decision of an

immigration judge (“IJ”) to deny her application for special rule cancellation of

removal. We have jurisdiction under 8 U.S.C. § 1252. We grant and remand the

petition for review in part and deny the petition in part.

      Blackwell-Hill was admitted to the United States on a B-2 nonimmigrant

visa in September 1998. Her visa expired in early 1999. In February 1999,

Blackwell-Hill was convicted of “solicitation for [the] purpose of prostitution” in

Las Vegas, Nevada. In December 2004, Blackwell-Hill was convicted of

“soliciting prostitution” in Las Vegas Township Justice Court.

      In November 2009, the Department of Homeland Security initiated removal

proceedings against Blackwell-Hill, charging that she was subject to deportation

under 8 U.S.C. § 1227(a)(1)(B) as an alien who had overstayed her visa. At an

immigration court removal hearing held in Las Vegas on January 20, 2010,

Blackwell-Hill conceded that she had overstayed her visa and was present in the

United States “illegally.” Based on these admissions, the IJ sustained the charge of


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removability.

      Blackwell-Hill then filed an application for special rule cancellation of

removal for battered spouses under 8 U.S.C. § 1229b(b)(2) (“special rule

cancellation”). Despite finding that she had been subjected to extreme cruelty by

her United States citizen husband, the IJ denied Blackwell-Hill’s application. In

relevant part, the IJ determined that Blackwell-Hill’s 1999 and 2004 solicitation

convictions were categorically crimes involving moral turpitude (“CIMTs”),

thereby depriving her of the opportunity to seek relief by way of special rule

cancellation.

      Blackwell-Hill appealed the IJ’s decision to the BIA, which dismissed her

appeal in an unpublished order dated November 6, 2012. In affirming the IJ’s

determination that Blackwell-Hill was ineligible for special rule cancellation, the

BIA concluded that her solicitation offenses qualified categorically as CIMTs:

                The record reflects, and the respondent admits, that she was
                convicted of solicitation for the purpose of prostitution
                in 1999 and 2004 . . . . We agree with the Immigration
                Judge that these convictions are categorically for crimes
                involving moral turpitude . . . . See, e.g., Rohit v. Holder,


                                             3
            670 F.3d 1085 (9th Cir. 2012) (California conviction for
            solicitation of prostitution was categorically for a CIMT).
            The respondent, who was represented by counsel before the
            Immigration Judge, did not contest this issue below, nor
            does she contest it on appeal. (citations omitted).
The BIA also held that Blackwell-Hill was not, in connection with her special rule

cancellation application, eligible to seek a waiver of her grounds of inadmissibility

under 8 U.S.C. § 1182(h)(2) (“section 212(h) waiver”).

      In her petition for review, Blackwell-Hill first contends that her two Nevada

convictions for solicitation of prostitution do not qualify as CIMTs. As the BIA

noted, however, Blackwell-Hill did not raise that issue in the administrative

proceedings below. Accordingly, the Attorney General argues, Blackwell-Hill

failed to exhaust her administrative remedies and we lack jurisdiction to consider

the CIMT question. See, e.g., Vargas v. INS, 831 F.2d 906, 907–08 (9th Cir.

1987).

      Although Blackwell-Hill did not challenge the IJ’s determination that her

convictions constituted CIMTs, where the BIA “has ignored a procedural defect and

elected to consider an issue on its substantive merits, we cannot then decline to

consider the issue based upon this procedural defect.” Abede v. Gonzales, 432 F.3d

                                           4
1037, 1041 (9th Cir. 2005) (en banc). Here, as evidenced by its reliance on our

opinion in Rohit v. Holder, which had not been cited by the parties, the BIA

“conducted an independent review of the record” and “exercised its own discretion”

to conclude that Blackwell-Hill’s convictions qualified as CIMTs. Abede, 432 F.3d

at 1040. As a result, we have jurisdiction over that portion of the petition for

review.

       Yet, while the issue is technically exhausted, Blackwell-Hill’s arguments

concerning the Nevada crime of solicitation give rise to novel issues which the

agency had no occasion to consider below. Unlike the California statute addressed

in Rohit, the Nevada statute does not generally prohibit prostitution and licenses it

in certain circumstances. Although the BIA does not necessarily have special

expertise to evaluate whether the Nevada offense of solicitation meets the definition

of a CIMT, under the unique circumstances of this case, it must be given a

meaningful opportunity to conduct the analysis in the first instance. We therefore

grant Blackwell-Hill’s petition in part and remand to the BIA for further

proceedings to reconsider whether her convictions qualify categorically as CIMTs.


                                           5
      On remand, the BIA shall permit a new round of briefing on the merits of the

CIMT issue. The BIA must analyze the elements of Blackwell-Hill’s specific

statute of conviction1 in evaluating whether her Nevada convictions are

categorically CIMTs. See Leal v. Holder, 771 F.3d 1140, 1144 (9th Cir. 2014) (to

determine whether a crime is a CIMT under the categorical approach, BIA must

“compare the elements of the statute of conviction to the generic definition of a

crime of moral turpitude”) (internal quotation marks and citation omitted). Nothing

in this memorandum disposition should be construed as resolving the merits of

Blackwell-Hill’s arguments regarding whether or not convictions under Nevada

Revised Statute § 201.354 constitute CIMTs.

      Blackwell-Hill also petitions for review of the BIA’s ruling that she was

ineligible for a section 212(h) waiver. That prong of her petition is denied. For the

reasons set forth in our opinion in Garcia-Mendez v. Holder, No. 12-73430 (9th

Cir. June __, 2015), also issued today, aliens are not permitted to seek a section



       1
        Despite the absence of any conclusive evidence in the administrative
record, the parties agree that both of Blackwell-Hill’s convictions arise under
Nevada Revised Statute § 201.354.

                                           6
212(h) waiver simply because they have applied for special rule cancellation of

removal.

      For the foregoing reasons, we GRANT in part and DENY in part Blackwell-

Hill’s petition for review. We REMAND in part to the BIA for further

consideration of whether Blackwell-Hill’s Nevada convictions for solicitation of

prostitution are CIMTs. This panel retains jurisdiction over any future appellate

proceedings in this matter. Each side to bear its own costs.

      PETITION FOR REVIEW DENIED in part, GRANTED in part, and

REMANDED.




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