                               NOT FOR PUBLICATION

                         UNITED STATES COURT OF APPEALS                          FILED
                               FOR THE NINTH CIRCUIT                              NOV 05 2013

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

HASSAN ABPIKAR, AKA John Abpikar                    No. 09-73384

                 Petitioner,                        Agency No. A026-361-799

     v.
                                                    MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

                 Respondent.


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

                                 Submitted April 16, 2013
                                 San Francisco, California

Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM, District
Judge.**

A.        Introduction

          Hassan Abpikar, a native and citizen of Iran, petitions for review of the




           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
           **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
Board of Immigration Appeals’ dismissal of his appeal. The Board affirmed the

immigration judge’s determinations that Abpikar was removable under 8 U.S.C.

§ 1227(a)(1)(A) and that Abpikar was ineligible for asylum and withholding of

removal. The Board also affirmed the immigration judge’s denial of Abpikar’s

application for cancellation of removal. We have jurisdiction under 8 U.S.C.

§ 1252, and we grant the petition in part and dismiss in part.

B.    Removal proceedings were proper.

      Abpikar argues that the immigration court and the BIA lacked jurisdiction

because criminal charges against him were pending in federal court. But Abpikar

does not cite any authority, and we know of none, to support his claim. Abpikar’s

argument that removal proceedings were precluded by the doctrine of res judicata

also fails. Abpikar bases his res judicata challenge on an order from the

immigration court terminating prior removal proceedings without prejudice. The

removal proceedings in this case were not precluded by that order because “a

dismissal without prejudice is not a decision on the merits for purposes of res

judicata.” Oscar v. Alaska Dep’t of Educ., 541 F.3d 978, 981 (9th Cir. 2008)

(internal quotation marks omitted).

C.    The immigration judge and the BIA properly considered Abpikar’s
      1980 conviction.



                                          2
      Abpikar advances several arguments that the immigration judge and the BIA

erred by considering his 1980 conviction for telephoning a bomb threat.1 First,

Abpikar argues that this conviction is not actually a conviction within the meaning

of 8 U.S.C. § 1101(a)(48)(A) because his sentence was suspended. This argument

is unpersuasive. See 8 U.S.C. § 1101(a)(48)(B) (“Any reference to a term of

imprisonment or a sentence with respect to an offense is deemed to include the

period of incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment . . . .” (emphasis

added)).

      Abpikar also argues that his conviction was not proved because the

immigration judge stated, “I think it’s a conviction,” at the May 26, 2009

cancellation hearing. This argument fails because the record reveals that the

immigration court relied on documentary evidence of Abpikar’s conviction.

      Finally, Abpikar mounts several challenges to the validity of his conviction

and argues that he did not have an opportunity to advance those arguments before

the immigration judge. But Abpikar’s lawyer did dispute the validity of the

           1
             Because the BIA did not rely on Abpikar’s conviction for petty theft,
we need not reach Abpikar’s argument that the immigration judge impermissibly
considered that conviction. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.
2004) (per curiam) (“In reviewing the decision of the BIA, we consider only the
grounds relied upon by that agency.”).

                                         3
conviction, and, in any case, “a conviction cannot be collaterally attacked in a

deportation proceeding.” Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir.

1993); see also Planes v. Holder, 652 F.3d 991, 995–97 (9th Cir. 2011).

D.    Abpikar was not deprived of his right to counsel.

      Abpikar argues that the immigration judge never informed him of his

statutory right to counsel. But the record shows that Abpikar affirmatively waived

his right to proceed with an attorney.

E.    The immigration judge did not violate Abpikar’s due process rights.

      Abpikar maintains that his due process rights were violated when the

immigration court remarked that Abpikar could resolve pending federal criminal

charges by pleading guilty to them. Abpikar has not demonstrated that the court’s

comment rendered the proceeding “so fundamentally unfair that [he] was

prevented from reasonably presenting his case,” Colmenar v. INS, 210 F.3d 967,

971 (9th Cir. 2000) (internal quotation marks omitted), nor has he demonstrated

that the comment affected the outcome of the proceeding, Reyes-Melendez v. INS,

342 F.3d 1001, 1006 (9th Cir. 2003). Consequently there was no due process

violation.

F.    Whether Abpikar’s conviction was for a crime of moral turpitude

      The immigration judge determinated that Abpikar was removable pursuant

                                          4
to 8 U.S.C. § 1227(a)(1)(A) because he had been convicted of telephoning a bomb

threat, which it determined was a crime of moral turpitude that rendered him

inadmissible at the time his status was adjusted to lawful permanent resident. The

Board affirmed the immigration judge’s determination after concluding that the

offense necessarily involves threats of physical violence that are made “willfully

and maliciously.” Okla. Stat. tit. 21, § 1767.1(A)(7) (1971)). Abpikar argues that

the BIA erred. We agree with Abpikar.

      In order to determine whether a particular crime involves moral turpitude,

this court applies the categorical and modified categorical approaches described in

Taylor v. United States, 495 U.S. 575 (1990). See Robles-Urrea v. Holder, 678

F.3d 702, 707 (9th Cir. 2012); see also Descamps v. United States, 133 S. Ct. 2276,

2285 (2013). Once the elements of the offense of conviction are established, those

elements are compared to the generic definition of “crime involving moral

turpitude.” See Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012). The

generic definition of “crime involving moral turpitude” is a crime involving “either

fraud or base, vile, and depraved conduct that shocks the public conscience.”

Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) (internal quotation marks

and brackets omitted).

      Section 1767.1(A)(7) is not an offense involving fraud. “Non-fraudulent

                                         5
[crimes involving moral turpitude] almost always involve an intent to harm

someone.” Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010)

(internal quotation marks omitted). Because § 1767.1(A)(7) does not require proof

of attendant physical harm or intent to harm, a violation of § 1767.1(A)(7) does not

categorically constitute a crime involving moral turpitude. We therefore remand

the case for determination of whether Abpikar’s particular offense involved moral

turpitude under the modified categorical approach.

G.    Whether Abpikar’s conviction was for a particularly serious crime

      The BIA affirmed the immigration judge’s determination that Abpikar was

ineligible for asylum and withholding of removal because telephoning a bomb

threat was a “particularly serious crime.” See 8 U.S.C. §§ 1158(b)(2)(A)(ii),

1231(b)(3)(B)(ii). We review the BIA’s determination that an alien was convicted

of a “particularly serious crime” for abuse of discretion. Arbid v. Holder, 700 F.3d

379, 385 (9th Cir. 2012). Whether a crime is a particularly serious crime generally

depends on “‘the nature of the conviction, the circumstances and underlying facts

of the conviction, the type of sentence imposed, and, most importantly, whether the

type and circumstance of the crime indicate that the alien will be a danger to the

community.’” Delgado v. Holder, 648 F.3d 1097, 1107 (9th Cir. 2011) (en banc)

(quoting In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982)).

                                          6
      Relying solely on the elements of the crime, the BIA determined that,

because the Oklahoma statute under which Abpikar was convicted includes a

“willful” and “malicious” intent requirement, Abpikar potentially committed a

crime that was “particularly serious” on its face. The BIA then concluded that

Abpikar had failed to meet his burden of establishing facts that would preclude

such a designation in his case. But in Blandino-Medina v. Holder, 712 F.3d 1338,

1346–47 (9th Cir. 2013), this court held that the BIA may not “create additional

categories of facially particularly serious crimes.”2 Under Blandino-Medina, the

BIA may not rely solely on the elements of the crime to determine whether a crime

is potentially a serious one and thus whether grounds for denial of withholding of

removal and asylum may apply. Id. at 1348. Further, the Board erred by failing to

consider Abpikar’s arguments that his crime was not particularly serious. We

therefore remand for a determination of whether Abpikar’s conviction was for a

particularly serious crime in light of the Frentescu factors.

H.    Cancellation of removal

      Abpikar challenges the denial of his application for cancellation of removal,

arguing that the immigration court erroneously determined that he has not been

       2
             8 U.S.C. § 1231(b)(3)(B)(ii) enumerates only a single category of per
se “particularly serious crimes”—aggravated felonies for which an alien has been
sentenced to at least five years’ imprisonment.

                                           7
rehabilitated. We do not have jurisdiction to review a discretionary rehabilitation

determination. See Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir. 2007); 8 U.S.C.

§ 1252(a)(2)(B)(i). This claim must be dismissed.

      We GRANT Abpikar’s petition in part and DISMISS in part. We

VACATE the Board of Immigration Appeals’ decision and REMAND to the

Board of Immigration Appeals for reconsideration consistent with this disposition.

The parties shall bear their own costs on appeal.




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