                                                                              FILED
                               NOT FOR PUBLICATION                             JUL 22 2015

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



                            FOR THE NINTH CIRCUIT

RENZO CHIARELLA-CERRON,                           No. 11-71832

              Petitioner,                         B.I.A. No. A095-775-192

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

              Respondent.


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

                                Submitted July 9, 2015**
                                San Francisco, California

Before: GILMAN,*** GRABER, and WATFORD, Circuit Judges.

      Petitioner Renzo Chiarella-Cerron seeks review of the Board of Immigration

Appeals’ ("BIA") dismissal of his appeal from the immigration judge’s ("IJ") entry

of a final order of removal.

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
          The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
      1. Substantial evidence supports the BIA’s adverse credibility

determination. See Singh v. Holder, 638 F.3d 1264, 1268–69 (9th Cir. 2011)

(stating the standard of review). In an effort to convince the IJ that his removal

would result in hardship to his family, thus justifying discretionary relief from

removal to Peru, Petitioner testified that his wife speaks only a "little bit" of

Spanish and does not read or write in Spanish. To the contrary, Petitioner’s wife

testified that she speaks Spanish fluently and reads and writes in Spanish. In this

case governed by the REAL ID Act, we must uphold the adverse credibility

determination; and we note that this inconsistency goes to the heart of Petitioner’s

claim for relief. We therefore deny the petition with respect to the adverse

credibility determination.

      2. The BIA correctly held that Petitioner was convicted of conspiracy to

commit assault, in violation of California Penal Code section 245(a)(1). Petitioner

pleaded nolo contendere to "Count 2" and admitted to the allegations in the felony

complaint. The complaint alleged, in Count 2, that Petitioner and others "did

conspire together to commit a crime, a violation of section 245(a)(1) of the Penal

Code of the State of California." Accordingly, we deny the petition with respect to

the BIA’s identifying the statute of conviction.




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      3. The BIA held that Petitioner was inadmissible for having been convicted

of a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I), and that,

accordingly, Petitioner was ineligible for adjustment of status pursuant to 8 U.S.C.

§ 1255(i). The BIA reasoned that it was bound by our decision in Gonzales v.

Barber, 207 F.2d 398 (9th Cir. 1953), aff’d on other grounds, 347 U.S. 637 (1954),

that an assault in violation of California Penal Code section 245(a)(1) is a crime

involving moral turpitude.

      Although correct at the time, the BIA’s holding has been overtaken by recent

developments. In Ceron v. Holder, 747 F.3d 773, 779–85 (9th Cir. 2014) (en

banc), we overruled Barber and related cases. We remanded to the BIA to

determine, in the first instance, whether assault in violation of California Penal

Code section 245(a)(1) is a crime involving moral turpitude, in part because "we

have created error in the BIA’s decision and have thwarted the ordinary procedure

through which the BIA has the first opportunity to assess whether a crime involves

moral turpitude." Ceron, 747 F.3d at 784. The same reasoning applies here, and

we are bound by Ceron. Accordingly, we grant the petition with respect to the

moral turpitude issue and remand for further proceedings consistent with Ceron.

      4. Pursuant to our recent decision in Torres-Valdivias v. Lynch, 786 F.3d

1147, 1152–53, (9th Cir. 2015), we lack jurisdiction over Petitioner’s argument


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that the BIA erred in determining that he committed a "violent or dangerous crime"

under In re Jean, 23 I. & N. Dec. 373 (Att’y Gen. 2002), and 8 C.F.R. § 1212.7(d).

We dismiss the petition with respect to the BIA’s denial of a waiver of

inadmissibility.

      Petition DENIED in part, GRANTED in part, and DISMISSED in part.

The parties shall bear their owns costs on appeal.




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