                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUN 29 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE ALBERTO PRIETO-                             No. 13-70874
HERNANDEZ,
                                                 Agency No. A028-956-109
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted December 9, 2015
                            San Francisco, California

Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.

      Petitioner Jose Alberto Prieto-Hernandez (“Prieto”) seeks review of the

Board of Immigration Appeals’ (the “BIA’s”) dismissal of Prieto’s appeal of the

immigration judge’s (“IJ’s”) removal order, which denied and/or pretermitted

Prieto’s applications for asylum, withholding of removal, cancellation of removal



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under the Immigration and Nationality Act (“INA”) and special rule cancellation of

removal under the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”). For the reasons set forth herein, we deny in part and dismiss in part

Prieto’s petition for review.

1.    The IJ concluded that Prieto had no reasonable expectation of future

persecution, which is a predicate to eligibility for both asylum and withholding of

removal. Prieto failed to challenge such finding before either the BIA or this

Court, and has thus waived any argument to the contrary. See, e.g., Zehatye v.

Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). This waiver strips us of

jurisdiction to consider whether the IJ’s determination was supported by

substantial evidence, Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per

curiam); 8 U.S.C. § 1252(d), and renders us unable to grant any effective relief

with respect to Prieto’s claims for asylum and withholding of removal.

2.    Finally, Prieto is ineligible for cancellation of removal under the INA and

for NACARA special rule cancellation because Prieto’s 1997 conviction for receipt

of stolen property under California Penal Code § 496(a) is a “theft offense” within

the meaning of 8 U.S.C. § 1101(a)(43)(G), and Prieto received a sentence of 365

days. Id. (defining the term “aggravated felony” as including theft offenses that

carry a prison term of “at least one year”); Verdugo-Gonzalez v. Holder, 581 F.3d


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1059, 1061–62 (9th Cir. 2009); see also 8 U.S.C. §§ 1229b(b)(1)(C),

1227(a)(2)(A)(iii) (together, providing that an aggravated felony bars cancellation

of removal); 8 C.F.R. § 1240.66(c) (same for “special rule” cancellation under

NACARA).

      Neither California Penal Code § 18.5 nor the California Superior Court’s

recharacterization of Prieto’s offense as a “misdemeanor” helps Prieto. We have

repeatedly held that a state court’s characterization of a conviction has no effect on

federal immigration law. See, e.g., Habibi v. Holder, 673 F.3d 1082, 1088 (9th

Cir. 2011) (“[W]hether a state classifies an offense as a ‘misdemeanor’ is irrelevant

to determining whether it is an ‘aggravated felony’ for purposes of federal law.”);

see also Ramirez-Castro v. I.N.S., 287 F.3d 1172, 1174 (9th Cir. 2002) (“For

immigration purposes, a person continues to stand convicted of an offense

notwithstanding a later expungement under a state’s rehabilitative law.” (emphasis

added)). Section 18.5 does not change the fact that Prieto’s actual sentence was

365 days. See Alberto-Gonzalez v. I.N.S., 215 F.3d 906, 910 (9th Cir. 2000) (The

phrase, “one year or more” in section 1101(a)(43)(G) “refer[s] to the actual

sentence imposed by the trial judge.”).

      Prieto’s reliance on Tapia v. Superior Court, 807 P.2d 434 (Cal. 1991) is

misplaced for the same reason: California’s determination that a statute applies


                                          -3-
retroactively to modify the nature of a state-court conviction has no effect on the

classification of that offense for purposes of federal immigration law. See, e.g.,

Ramirez-Castro, 287 F.3d at 1174. And even were Tapia relevant, it would not

apply here. Tapia merely held that, when a change in law that clearly benefits the

defendant occurs between the commission of an offense and the trial for that

offense, the new law “may be applied to pending cases.” Tapia, 807 P.2d at 446.

Prieto’s theft case is not “pending.” Prieto pled guilty to a theft offense in 1997.

The change in law occurred nearly two decades later. It is not at all clear under

Tapia that even California would apply § 18.5 retroactively in these circumstances.

3.    Prieto is ineligible for all relief sought for the reasons set forth above; thus,

we need not consider whether the persecutor bar also precludes the same relief.

      We accordingly DENY IN PART and DISMISS IN PART Prieto’s petition

for review.




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