                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 23 2017

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



                            FOR THE NINTH CIRCUIT


OSBERTO MENDEZ-QUICHE,                           No.   14-73916

              Petitioner,                        Agency No. A095-759-236

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

              Respondent.


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

                            Submitted January 18, 2017**

Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

      Osberto Mendez-Quiche, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming

an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review de novo questions of law, Retuta v. Holder, 591 F.3d 1181,

1184 (9th Cir. 2010), and we deny the petition for review.

      The IJ correctly determined that Mendez-Quiche’s two convictions for

violating California Penal Code § 647(b) are crimes involving moral turpitude. See

Rohit v. Holder, 670 F.3d 1085, 1090 (9th Cir. 2012) (solicitation of prostitution

under § 647(b) is categorically a crime involving moral turpitude). To the extent

Mendez-Quiche suggests the panel should overrule Rohit v. Holder, “[a]

three-judge panel cannot reconsider or overrule circuit precedent” in the absence of

an intervening Supreme Court or en banc decision. Avagyan v. Holder, 646 F.3d

672, 677 (9th Cir. 2011).

      The IJ correctly determined that Mendez-Quiche’s 2007 plea of nolo

contendere to a violation of California Penal Code § 647(b) is a conviction for

immigration purposes. See 8 U.S.C. § 1101(a)(48); Reyes v. Lynch, 834 F.3d 1104,

1107 (9th Cir. 2016) (“The federal definition of conviction where adjudication of

guilt has been withheld includes aliens who have entered pleas of nolo contendere

and ‘the judge has ordered some form of punishment, penalty, or restraint on the

alien’s liberty to be imposed.’” (quoting 8 U.S.C. § 1101(a)(48)(ii))); cf. Retuta,

591 F.3d at 1181 (holding that “an unconditional suspended non-incarceratory




                                           2                                    14-73916
sanction that has no present effect is not a punishment, penalty, or restraint” under

8 U.S.C. § 1101(a)(48)).

      Accordingly, because Mendez-Quiche has been convicted of two crimes

involving moral turpitude, the IJ correctly determined that he is statutorily

ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).

      Mendez-Quiche’s contention that the BIA erred in summarily affirming the

IJ’s decision is without merit. See 8 C.F.R. § 1003.1(e)(4)(i) (setting forth

situations that are appropriate for affirmance without opinion).

      PETITION FOR REVIEW DENIED.




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