                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 15 2015

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



                            FOR THE NINTH CIRCUIT


SHERWIN Q. RINTON, AKA Sherwin                   No. 11-71350
Renton, AKA Sherwin Quiray Rinton,
                                                 Agency No. A046-713-187
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                             Submitted June 8, 2015**
                                Honolulu, Hawaii

Before: WARDLAW, BERZON, and OWENS, Circuit Judges.

      Sherwin Q. Rinton petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s

(“IJ”s) order (1) finding him removable under 8 U.S.C. § 1227(a)(2)(A)(ii) as an


        *
             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).
alien convicted of two crimes involving moral turpitude not arising out of a single

scheme and (2) denying his application for cancellation of removal under 8 U.S.C.

§ 1229b(a).

      1. We reject Rinton’s contention that his deferred acceptance of guilty plea

pursuant to Haw. Rev. Stat. § 853-1(a) for theft in the third degree, Haw. Rev. Stat

§ 708-832, is not a conviction for immigration purposes. 8 U.S.C.

§ 1101(a)(48)(A) provides:

      The term “conviction” means, with respect to an alien, a formal
      judgment of guilt of the alien entered by a court or, if adjudication of
      guilt has been withheld, where —

      (i) a judge or jury has found the alien guilty or the alien has entered a
      plea of guilty or nolo contendre or has admitted sufficient facts to
      warrant a finding of guilt, and

      (ii) the judge has ordered some sort of punishment, penalty, or
      restraint on the alien’s liberty to be imposed.

(emphasis added).

      Rinton’s deferred acceptance plea meets both requirements. Rinton entered

a guilty plea. “[T]he Hawaii deferred-acceptance rule constitutes a ‘punishment,’”

as it “gives a defendant an opportunity to serve a probation-like sentence” that

“restrict[s] the [defendant]’s liberty.” United States v. Bosser, 866 F.2d 315,

316–17 (9th Cir. 1989); Haw. Rev. Stat. § 853-1(a). Thus, although Rinton’s



                                          2
deferred guilty plea was pending at the time of the IJ’s order, he was “convicted”

of two theft crimes for the purposes of 8 U.S.C. § 1227(a)(2)(A)(ii). See Lujan-

Armendariz v. I.N.S., 222 F.3d 728, 735-36 (9th Cir. 2000), overruled in part on

other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc);

Yasay v. Holder, 368 F. App’x 727, 728 (9th Cir. 2010). He will remain

“convicted” of the third-degree theft charge for purposes of removal even if the

charge is eventually dismissed.1 See Ramirez-Castro v. INS, 287 F.3d 1172, 1174

(9th Cir. 2002).

       We also reject Rinton’s various arguments that 8 U.S.C. § 1101(a)(48)(A)

violates an alien’s right to due process and equal protection. The text of

§ 1101(a)(48)(A) is “unambiguous[],” providing adequate notice of the

immigration consequences of a guilty or nolo contendere plea. Murillo-Espinoza

v. I.N.S., 261 F.3d 771, 775 (9th Cir. 2001) (Gould, J. concurring); see also Lujan-

Armendariz v. I.N.S., 222 F.3d at 737. It ensures that individuals in states with

differing criminal rehabilitative procedures are treated equally for immigration

purposes, see Murillo-Espinoza, 261 F.3d at 774, and is tailored to “the

government’s need for a nationally uniform definition of the term ‘conviction’ for

      1
        Accordingly, Rinton’s motion to remand the case to the IJ and to hold the
case in abeyance pending the Hawaii court’s ultimate disposition of his plea is
DENIED.

                                          3
immigration purposes.” Ramirez-Altamirano v. Holder, 563 F.3d 800, 817 (9th

Cir. 2009) (quoting Herrera-Inirio v. INS, 208 F.3d 299, 309 (1st Cir.2000)),

overruled on other grounds by Nunez-Reyes, 646 F.3d 684.

      2. Rinton’s conviction under Haw. Rev. Stat. § 708-833 for theft in the

fourth degree is a crime involving moral turpitude. “Petty theft is a crime

involving moral turpitude . . . .” Flores Juarez v. Mukasey, 530 F.3d 1020, 1022

(9th Cir. 2008) (per curiam); see United States v. Esparza-Ponce, 193 F.3d 1133,

1136–37 (9th Cir. 1999) (“Since the elements of petty theft are the same as theft in

general, the element of moral turpitude would continue to be present whether the

theft be petty or grand.”).

      3. Rinton challenges the denial of his application for cancellation of

removal solely on the grounds that the IJ abused her discretion in balancing the

factors relevant to the discretionary determination. We lack jurisdiction to review

such claims. See 8 U.S.C.§ 1252(a)(2)(B)(i); Bazua–Cota v. Gonzales, 466 F.3d

747, 749 (9th Cir. 2006) (per curiam).

      The petition for review is DENIED.




                                         4
