Turcios

Opinion by Judge SILER; Dissent by Judge KLEINFELD.

Orlando Turcios petitions for review of the Board of Immigration Appeals’s (BIA) denial of his motion to reconsider its rejection of his appeal of an Immigration Judge’s (IJ) decision as being untimely filed. Because we lack jurisdiction to review the petition, it must be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Turcios is a citizen of Nicaragua. In October 2003, removal proceedings were commenced against him. The notice to appear alleged that Turcios was admitted to the United States as a lawful permanent resident in 1968, sought to reenter the United States in 2003, was paroled into the United States for deferred inspection, and had his parole was revoked in October 2003. Turcios was previously convicted of sale of cocaine, felony spousal abuse, resisting arrest, and eight separate instances of petty theft while in the United States. The notice to appear indicated that he was removable under 8 U.S.C. §§ 1182 (a)(2)(A)(i)(I) and (II) for his convictions for a crime relating to a controlled substance, and a crime involving moral turpitude. At the hearing before the IJ, Turcios admitted all of his convictions and conceded…

dissenting:

I respectfully dissent. I am filing the same dissent in Irigoyen-Briones v. Holder, No. 07-71806 and Turcios v. Holder, No. 05-72258, because these two cases raise identical legal issues, in materially similar factual and legal contexts. The issue in both cases is whether the Board of Immigration Appeals ought to have considered an appeal that was sent in time to arrive before the deadline, and was guaranteed by the shipper to arrive in time, but got stamped in at Board headquarters the day after the due date. The merits are not at issue before us, just lateness. The issue of lateness affects innumerable cases, and it is a matter of chance whether an alien attempting to appeal falls into this pit.

In Turcios, the alien’s lawyer attached to his motion for reconsideration a letter from FedEx Express. FedEx says that although “the shipment was due for delivery by 10:30 a.m. on December 23 ... severe weather conditions caused an extensive and lengthy disruption of our transportation system, and thus the parcel did not reach its destination on the anticipated date. Delivery was completed on December 27 at 10:00 a.m.”

In Irigoyen-Briones, the alien’s lawyer personally…

DISCUSSION

Generally, the Courts of Appeals have jurisdiction to review final removal orders of the BIA. 8 U.S.C. § 1252(a). However, Congress has restricted judicial review where an alien is removable based on a conviction for certain crimes. 8 U.S.C. § 1252(a)(2)(C). Such crimes include those involv- ing moral turpitude (other than a purely political offense), 8 U.S.C. § 1182(a)(2)(A)(i), and a violation of any state law relating to a controlled substance other than a single offense of possession of a small quantity of marijuana, 8 U.S.C. § 1182(a)(2)(B)(i).

Turcios’s convictions are covered under 8 U.S.C. § 1252(a)(2)(C). He admitted that he was previously con- victed of sale of cocaine, felony spousal abuse, resisting arrest, and eight separate instances of petty theft while in the United States. Petty theft is a crime involving moral turpitude, United States v. Esparza-Ponce, 193 F.3d 1133, 1135-37 (9th Cir. 1999), and spousal abuse is a crime of moral turpitude. Grageda v. U.S. INS, 12 F.3d 919, 922 (9th Cir. 1993).

[1] As noted by Turcios, the REAL ID Act of 2005 pro- vides that the restriction on judicial review for criminal aliens be construed so as to preserve this…