                                 NOT FOR PUBLICATION                      FILED
                       UNITED STATES COURT OF APPEALS                      JUL 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                 FOR THE NINTH CIRCUIT                  U.S. COURT OF APPEALS



BORISLAV NIKOLOV ZAPRIANOV,                       No. 16-72930

                   Petitioner,                    Agency No. A046-320-206

     v.
                                                  MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                   Respondent.

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                        Argued and Submitted October 15, 2019
                                 Pasadena, California

Before: WARDLAW and COLLINS, Circuit Judges, and SETTLE,** District Judge.

          Borislav Zaprianov petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his

request for a continuance of the proceeding and his application for cancellation of

removal. We have jurisdiction under section 242 of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1252. We deny the petition.


*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
 The Honorable Benjamin H. Settle, United States District Judge for the Western
District of Washington, sitting by designation.
      Zaprianov is a native and citizen of Bulgaria. In March 2000, Zaprianov

pleaded guilty in Arizona state court to solicitation to commit fraudulent schemes

and artifices, “committed on or between 8/12/94 and 8/17/94,” in violation of

Arizona Revised Statutes §§ 13-1002 and 13-2310. He was sentenced to three

years of probation and was ordered to pay $10,127.56 in restitution. In March

2003, Zaprianov was convicted in California state court of corporal injury to a

spouse/cohabitant, in violation of California Penal Code § 273.5. In July 2008, the

Government commenced removal proceedings against Zaprianov based on his

conviction for domestic violence. In response, Zaprianov sought cancellation of

removal, which the Government opposed arguing that Zaprianov’s Arizona

conviction constituted an “aggravated felony” that rendered him ineligible for

cancellation.

      During the proceedings, the IJ granted Zaprianov multiple continuances to

research or resolve issues relating to the Arizona conviction. In March 2014,

Zaprianov filed an application in Arizona state court to vacate his conviction

pursuant to Arizona Revised Statutes §§ 13-905–13-912. Two months later, the IJ

denied Zaprianov’s request for an additional continuance pending resolution of

Zaprianov’s application in Arizona state court. The IJ then concluded that

Zaprianov’s prior conviction was for an “aggravated felony,” denied his

application for cancellation of removal, and ordered him removed. Shortly


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thereafter, the Arizona court granted Zaprianov’s application to vacate his

conviction. Zaprianov appealed to the BIA, which affirmed the IJ’s decision and

dismissed the appeal.

      1. The BIA did not err in affirming the IJ’s decision to deny an additional

continuance. Zaprianov’s application in Arizona state court invoked Arizona

Revised Statutes §§ 13-905–13-912, which authorized the sentencing court to grant

relief “on fulfillment of the conditions of probation or sentence and discharge by

the court.” ARIZ. REV. STAT. § 13-907(A) (2014) (later renumbered as § 13-905).

In Poblete Mendoza v. Holder, we held that vacatur under § 13-907 “was for

rehabilitative purposes and therefore, the government could use this conviction in

[a] subsequent removal proceeding.” 606 F.3d 1137, 1142 (9th Cir. 2010). Thus,

because the outcome of the state court application was irrelevant for immigration

purposes, the IJ did not abuse his discretion in denying Zaprianov’s request for a

continuance.

      2. The BIA did not err in concluding that Zaprianov’s Arizona conviction

was an “aggravated felony” because it was an offense “[1] involv[ing] fraud or

deceit [2] in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C.

§ 1101(a)(43)(M)(i).

      a. In determining whether a conviction “involves fraud or deceit,” we apply

a “categorical approach,” under which “we look not to the facts of the particular


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prior case, but instead to whether the state statute defining the crime of conviction

categorically fits within the generic federal definition of a corresponding

aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citations and

internal quotation marks omitted). That is, “a state offense is a categorical match

with a generic federal offense only if a conviction of the state offense necessarily

involved facts equating to the generic federal offense.” Id. (citation, internal

quotation marks, and alteration marks omitted).

      Here, Zaprianov was convicted of solicitation to commit fraudulent schemes

and artifices in violation of Arizona Revised Statutes §§ 13-1002 and 13-2310.

Section 13-1002 provides that a person “commits solicitation if, with the intent to

promote or facilitate the commission of a felony or misdemeanor, such person

commands, encourages, requests or solicits another person to engage in specific

conduct which would constitute the felony or misdemeanor.” ARIZ. REV. STAT.

§ 13-1002(A). Zaprianov solicited a crime in violation of § 13-2310, which

punishes “[a]ny person who, pursuant to a scheme or artifice to defraud, knowingly

obtains any benefit by means of false or fraudulent pretenses, representations,

promises or material omissions.” ARIZ. REV. STAT. § 13-2310(A). “Because the

crime of solicitation does not exist without incorporating other laws, solicitation is

a law whose character or type depends wholly on the underlying substantive

offense.” Murro v. Ariz. Dep’t of Health Servs., 442 P.3d 834, 836 (Ariz. Ct. App.


                                          4
2019); see also Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007)

(crime of solicitation under Arizona law requires consideration of the “underlying

crimes” solicited). Thus, solicitation to violate Arizona Revised Statute § 13-2310

necessarily involves both “a scheme or artifice to defraud” and “false or fraudulent

pretenses, representations, promises or material omissions.” ARIZ. REV. STAT. §

13-2310(A). To convict Zaprianov, Arizona was required to prove that he

“command[ed], encourage[d], request[d] or solicit[ed] another person to engage in

specific conduct which would constitute” that felony. ARIZ. REV. STAT. § 13-

1002(A). The crime, therefore, “necessarily entail[ed] fraudulent or deceitful

conduct” and is an “aggravated felony.” Moncrieffe, 569 U.S. at 190; see also

Kawashima v. Holder, 565 U.S. 478, 484 (2012) (“We conclude that Mrs.

Kawashima’s conviction establishes that, by knowingly and willfully assisting her

husband’s filing of a materially false tax return, Mrs. Kawashima also committed a

felony that involved ‘deceit.’”).1


1
  Zaprianov’s reliance upon Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir.
1997), and Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999), is unavailing
because the statutes addressed in those cases specifically listed the inchoate crimes
of attempt and conspiracy. Here, the applicable definition of “aggravated felony”
contains no such comparable language excluding solicitation offenses. 8 U.S.C.
§ 1101(a)(43)(M)(i). Similarly, we have rejected Zaprianov’s other argument that
the language of subsection (U) somehow “exclude[s] solicitation from the
definition of an aggravated felony under the subsections that come before,
§ 1101(a)(43)(A)-(T).” Prakash v. Holder, 579 F.3d 1033, 1038 (9th Cir. 2009).
Zaprianov’s conviction qualifies as an aggravated felony under one such
subsection—subsection (M)(i)—and “[o]ne is enough.” Id. at 1039.

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      b. Zaprianov’s Arizona conviction also involved “loss to the victim or

victims exceed[ing] $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). Under Nijhawan v.

Holder, this clause of the statute is not subject to the categorical approach. 557

U.S. 29, 41 (2009). Here, the judgment in Zaprianov’s case ordered him to pay

“restitution” of $10,127.56 for “economic loss of the victim(s).” “In the absence

of any conflicting evidence,” this determination in the “restitution order” provides

sufficient clear and convincing evidence that Zaprianov caused more than $10,000

of loss. See id. at 42–43.

      PETITION DENIED.




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