170 F.3d 1213 (9th Cir. 1999), 98-70057, Lafarga v. I.N.S.

Docket Nº:98-70057.
Citation:170 F.3d 1213
Party Name:Journal D.A.R. 2683 Martina Francisca LAFARGA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:March 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1213

170 F.3d 1213 (9th Cir. 1999)

Journal D.A.R. 2683

Martina Francisca LAFARGA, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70057.

United States Court of Appeals, Ninth Circuit

March 23, 1999

Submitted Feb. 5, 1999. 1

Amended April 5, 1999.

Page 1214

Wendy S. LeStarge, Stender & Larkin, Phoenix, Arizona, for the petitioner.

Jane Gomez, Office of Immigration Litigation, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A71-619-075.

Before: PREGERSON, BEEZER, and HAWKINS, Circuit Judges.

PREGERSON, Circuit Judge:

Martina Francisca Lafarga ("Lafarga") appeals a decision of the Board of Immigration Appeals ("BIA") that denied her request for voluntary departure. Lafarga, a citizen of Mexico, entered the United States without inspection in December 1989. Lafarga's husband and four children, all United States citizens, reside in the United States. On December 20, 1993, Lafarga pleaded guilty in Arizona to theft classified as a "class 6 undesignated, nondangerous, nonrepetitive offense." Lafarga was placed on probation for 18 months. After Lafarga successfully completed probation, the court, in its final judgment, designated her offense as a misdemeanor.

On November 27, 1995, an immigration judge determined that Lafarga's theft statutorily precluded the Immigration and Naturalization Service ("INS") from granting her request for voluntary departure. The immigration judge determined that Lafarga failed to meet the "good moral character" eligibility requirement for voluntary departure because she had been convicted of a "crime involving moral turpitude." 8 U.S.C. § 1254(e); 8 U.S.C. § 1182(a)(2). The immigration judge determined that Lafarga's conviction did not qualify under the statutory exception for petty offenses. The petty offense exception applies if "the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and ... the alien was not sentenced to a

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term of imprisonment in excess of 6 months." 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

The BIA affirmed. The BIA reasoned that Lafarga's offense, which was undesignated at the time of conviction, was "akin to an indeterminate sentence." The BIA relied on Matter of D-, 20 I & N Dec. 827 (BIA 1994), which held that when applying the petty offense exception to an indeterminate sentence, the BIA should consider the maximum sentence possible. Because Lafarga's offense could have been designated as either a felony (with a maximum sentence of one and one half years) or a misdemeanor (with a maximum sentence of six months), the BIA concluded that a designation of her offense as a felony would put her offense outside the petty offense exception and denied Lafarga's request for voluntary departure in lieu of deportation. We grant Lafarga's petition, vacate the judgment and remand.

I.

The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") govern Lafarga's petition. 2 Under the transitional rules, we are precluded from reviewing "any discretionary decision under section ... 244 of the [Immigration and Naturalization Act ("INA") ]." IIRIRA § 309(c)(4)(E). Section 244 of the INA gives the Attorney General discretion to grant an alien the privilege of voluntary departure. See 8 U.S.C. § 1254(c) (1996) (codifying INA § 244). But "[a]s to those elements of statutory eligibility, which do not involve the exercise of discretion, direct judicial review remains." Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997).

The issue before us is whether the BIA correctly determined that Lafarga was statutorily ineligible for voluntary departure because she failed to meet the good moral character requirement. We noted in Kalaw that a "determination of per se ineligibility is not a discretionary matter." Id. at 1151. Because the application of a statutory provision is not a "discretionary decision," but rather, an application of the law, the court has jurisdiction under 8 U.S.C. § 1105(a). See Antonio-Cruz v. INS, 147 F.3d 1129, 1130 & n. 3 (9th Cir.1998).

II.

We are asked to consider whether the BIA correctly applied the statutory requirements of the petty offense exception set forth in 8 U.S.C. § 1182(a)(2)(A)(ii). We review an agency's application of a statute de novo. See Braun v. INS, 992 F.2d 1016, 1018 (9th Cir.1993). The INA statutorily precludes an alien convicted of a "crime involving moral turpitude" from meeting the good moral character requirement for voluntary departure. 8 U.S.C. § 1182(a)(2). But an exception exists for crimes that were only petty offenses: that is, where "the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and ... the alien was not sentenced to a term of imprisonment in excess of 6 months." 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

The BIA treated Lafarga's undesignated offense as "akin to an indeterminate sentence." In cases involving indeterminate sentences, the BIA looks to the maximum sentence possible for the offense to determine whether the offense qualifies under the petty offense...

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