NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 5 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUVENAL GARCIA GONZALEZ, AKA No. 19-71043 Juvanal Gonzalez, Agency No. A092-736-474 Petitioner,

v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted March 4, 2021** San Francisco, California

Before: BALDOCK,*** WARDLAW, and BERZON, Circuit Judges.

Juvenal Garcia Gonzalez petitions for the review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal from the Immigration Judge’s (“IJ”)

* 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). *** The Honorable Bobby R. Baldock, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 1 decision denying (1) his motion to terminate and (2) his applications for a waiver of

inadmissibility and adjustment of status. Exercising jurisdiction to the extent

allowed under 8 U.S.C. § 1252(a)(2)(D), we deny in part and dismiss in part the

petition for review.

1. Petitioner first contends the BIA lacked jurisdiction over the removal

proceedings because the Notice to Appear (“NTA”) did not specify the name of the

court in which the NTA was to be filed. We review the sufficiency of the NTA de

novo. Kohli v. Gonzalez, 473 F.3d 1061, 1065 (9th Cir. 2007). Omitting the time,

date, or place from an NTA does not deprive the immigration court of jurisdiction.

See Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020). Accordingly, we

deny Petitioner’s claim that the BIA lacked jurisdiction over his removal

proceedings.

2. Petitioner next argues the BIA erred in concluding that his assault

conviction under California Penal Code § 245(a)(2) constitutes an aggravated felony

crime of violence. We review de novo whether an offense qualifies as an aggravated

felony crime of violence. See United States v. Grajeda, 581 F.3d 1186, 1188 (9th

Cir. 2009).

We have held that a conviction “under California Penal Code § 245(a)(2) is

categorically a ‘crime of violence’ and an ‘aggravated felony’ for immigration

purposes.” United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (per

2 curiam). While Petitioner contends that our decision in Heron-Salinas is clearly

irreconcilable with Moncrieffe v. Holder, 569 U.S. 184 (2013), we have since

reaffirmed our conclusion that California assault is a categorical crime of violence.

See United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018).

Though Vasquez-Gonzalez addressed California Penal Code § 245(a)(1), the

difference between § 245(a)(1) and (a)(2) is immaterial to the “crime of violence”

analysis. The two subsections “proscribe the same conduct, the only difference

being the type of weapon involved.” Heron-Salinas, 566 F.3d at 899. We therefore

deny Petitioner’s claim that his assault conviction under California Penal Code §

245(a)(2) does not constitute an aggravated felony crime of violence.

3. Petitioner also argues that the “violent or dangerous crime” distinction

provided for in 8 C.F.R. § 1212.7(d) and applied to his application for a waiver of

inadmissibility is unconstitutionally vague. We review constitutional claims arising

from the BIA’s decision de novo. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.

2003).

The attorney general may grant a discretionary waiver of inadmissibility if an

alien can prove his removal would result in extreme hardship to a spouse, parent, or

child, if those qualifying relatives are United States citizens or lawfully admitted

permanent residents. 8 U.S.C. §.1182(h)(1)(B). But when an alien has committed

a violent or dangerous crime a heightened standard applies. See 8 C.F.R. §

3 1212.7(d). In those cases, the attorney general will only exercise favorable

discretion in “extraordinary circumstances,” including when the alien clearly

demonstrates that the denial of the application would result in “exceptional and

extremely unusual hardship.” 8 C.F.R. § 1212.7(d).

Petitioner argues 8 C.F.R. § 1212.7(d) is unconstitutionally vague under

Johnson v. United States, 576 U.S. 591 (2015), because it applies a heightened

standard for “violent or dangerous crimes.” In Johnson, the Supreme Court held the

residual clause of the Armed Career Criminal Act—which designated a “violent

felony” as any felony that “otherwise involves conduct that presents a serious risk

of physical injury to another”—was unconstitutionally vague. 576 U.S. at 594; see

id. at 601–02. The Court explained that the residual clause violates due process

because it requires a judge to imagine an “ordinary case” of a particular crime and

then decide if that ordinary version of the crime presented a serious risk of physical

injury. Id. at 596. “It is one thing,” the Court clarified, “to apply an imprecise

‘serious potential risk’ standard to real-world facts; it is quite another to apply it to

a judge-imagined abstraction.” Id. at 598.

Johnson provides no support for Petitioner’s argument. Unlike the categorical

approach required by the residual clause in Johnson, the BIA applies a circumstance-

specific approach when deciding whether an offense is violent or dangerous under 8

C.F.R. § 1212.7(d). That is, the BIA considers the alien’s actual conduct rather than

4 hypothesizing about an “ordinary case.” See Johnson, 576 U.S. at 596. Again, “[t]he

residual clause failed not because it adopted a ‘serious potential risk’ standard but

because applying that standard under the categorical approach required courts to

assess the hypothetical risk posed by an abstract generic version of the offense.”

Welch v. United States, 136 S. Ct. 1257, 1262 (2016). Because the BIA considers

whether the alien’s actual conduct was violent or dangerous (as opposed to

imagining a hypothetical, ordinary case of a crime), we deny Petitioner’s claim that

the heightened standard used in 8 C.F.R. § 1212.7(d) is unconstitutionally vague.

4. Petitioner’s final arguments take issue with the BIA’s discretionary

decisions. Petitioner complains that: (1) the BIA erred in viewing his assault

conviction as a “violent or dangerous crime”; (2) the BIA failed to consider all the

evidence when deciding whether he would face exceptional and extremely unusual

hardship from deportation; (3) the BIA failed to consider all the evidence when

deciding whether he presented extraordinary circumstances justifying a waiver of

inadmissibility; and (4) the BIA failed to balance all relevant discretionary factors,

including “evidence of positive equities,” before denying Petitioner’s application for

a waiver of inadmissibility.

As a general matter, we lack jurisdiction to review the BIA’s discretionary

decision to view a crime as a violent or dangerous one. Torres-Valdivias v. Lynch,

786 F.3d 1147, 1152–53 (9th Cir. 2015). We similarly lack jurisdiction to consider

5 “any discretionary aspect of the agency’s decision to deny [Petitioner’s] application

for adjustment of status and waiver of inadmissibility.” Diego v. Sessions, 857 F.3d

1005, 1011 (9th Cir. 2017). While we retain jurisdiction to ensure the BIA

considered the relevant evidence in making its decision, absent an indication

otherwise, we presume the agency considered all relevant evidence in the record.

Szonyi v. Barr, 942 F.3d 874, 897 (9th Cir. 2019). And we will not permit a

petitioner to “cloak[] an abuse of discretion argument in constitutional [or legal]

garb.” Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (quoting

Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)).

Here, the BIA adequately explained why it considered Petitioner’s assault

conviction to be violent or dangerous crime. The BIA also identified relevant record

evidence before exercising its discretion to deny Petitioner’s application for a waiver

of inadmissibility. The BIA’s decision does not reflect a failure to consider the

pertinent evidence. We therefore dismiss Petitioner’s remaining claims for lack of

jurisdiction.

DENIED in part; DISMISSED in part.

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