                                                                          FILED
                           NOT FOR PUBLICATION                             JUL 08 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



MARIA LITA PADERNAL-NYE,                        No. 08-72076
      Petitioner,
                                                Agency No. A072 515 064
  v.

ERIC H. HOLDER, JR.,                            MEMORANDUM *
       Respondent.



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

                        Argued and Submitted June 13, 2011
                            San Francisco, California

Before: O’SCANNLAIN, and BYBEE, Circuit Judges, and HAYES,** District
Judge.

       Petitioner appeals from the decision of the Board of Immigration Appeals

(“the Board”) ordering her removal to the Republic of the Philippines. The Board

adopted the decision of the Immigration Judge finding Petitioner removable under

section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act (“the Act”) on


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

       **   The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
the grounds that her 1996 conviction under section 200.508 of the Nevada Revised

Statutes for child abuse and neglect was a “crime of violence” and, therefore, an

“aggravated felony.” The Board further concluded that Petitioner was removable

under section 237(a)(2)(A)(i) of the Act on the grounds that her 1996 child abuse

conviction was “a crime involving moral turpitude.”

      Using the modified categorical analysis,1 the Court “may look beyond the

language of the statute to a narrow, specified set of documents that are part of the

record of conviction, including ‘the indictment, the judgment of conviction, jury

instructions, a signed guilty plea, or the transcript from the plea proceedings.’”

Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (quoting United States v.

Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc)). Petitioner admitted

as a factual basis in her signed plea agreement2 underlying the 1996 conviction for

child abuse that she was a person responsible for the care, custody and control of a

child 10 years of age; and that she willfully, unlawfully, and knowingly caused the



      1
          See United States v. Contreras-Salas, 387 F.3d 1095, 1097 (9th Cir. 2004).
      2
       At oral argument, Petitioner asserted without reference to any portion of the
record that the signed plea agreement was repudiated in the plea colloquy. Petitioner
did not raise the argument at any stage in the administrative proceedings, or at any
stage in the briefing presented in this Court. Accordingly, this argument has been
waived. See Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008); see also 8 U.S.C. §
1252(d)(1).

                                           2
child to suffer unjustifiable physical pain, or mental suffering, by kicking and

pulling on the child and by holding a knife to his throat. The Board properly

concluded that Petitioner’s 1996 conviction for child abuse was a crime of violence

as defined by 18 U.S.C. § 16(a) and a crime of moral turpitude which rendered the

Petitioner statutorily ineligible for voluntary departure and subject to removal. 8

U.S.C. § 1227(a)(2)(A)(i), (iii).

      PETITION DENIED.




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