334 F.3d 840 (9th Cir. 2003), 02-70200, Garcia-Lopez v. Ashcroft

Docket Nº:02-70200
Citation:334 F.3d 840
Party Name:Garcia-Lopez v. Ashcroft
Case Date:June 26, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 840

334 F.3d 840 (9th Cir. 2003)

Erwin Estuardo GARCIA-LOPEZ, Petitioner,


John ASHCROFT, Attorney General, Respondent.

No. 02-70200.

United States Court of Appeals, Ninth Circuit

June 26, 2003

Argued and Submitted June 3, 2003.

Page 841

Matt Adams, Northwest Immigrant Rights Project, Granger, WA, for the petitioner.

Kurt B. Larson (argued) and Ernesto H. Molina, Jr. (briefed), Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A73-444-466.

Before LAY, [*] FERGUSON, and GOULD, Circuit Judges.

FERGUSON, Circuit Judge:

Erwin Estuardo Garcia-Lopez petitions from a final order of deportation entered by the Board of Immigration Appeals

Page 842

("BIA"). Garcia-Lopez contends that the BIA erred when it determined that he was ineligible for suspension of deportation under the Immigration and Nationality Act (INA)'s "petty offense" exception. See 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1996). Specifically, Garcia-Lopez asserts that his guilty plea conviction pursuant to a California "wobbler" statute, under which the offense may be treated as either a misdemeanor or a felony, did not result in a conviction of a crime for which the maximum penalty exceeds imprisonment for one year. Because we determine that the state court's declaration that Garcia-Lopez's offense was a misdemeanor is binding on Garcia-Lopez's subsequent immigration proceedings, we reverse.


Garcia-Lopez is a native and citizen of Guatemala. When he was a child, his biological mother died as a result of being beaten by his stepfather. Thereafter, Garcia-Lopez was raised by his aunt, Erma Lopez, whom he now looks upon as his mother. In 1983, Ms. Lopez came to the United States. In 1985, Garcia-Lopez and his cousin David, Ms. Lopez's son, came to the United States to join her in California.

During his adolescence, Garcia-Lopez experienced severe depression and conflicts with Ms. Lopez. As a result, he moved out of her house and for a time became homeless. In July of 1992, while he was homeless, he was arrested for stealing a purse. On August 7, 1992, he pleaded guilty to grand theft.1 Without sentencing Garcia-Lopez, the state court judge suspended the proceedings and ordered probation for a period of three years, the first 180 days of which were to be spent in the county jail. Garcia-Lopez was later released to a halfway house and placed on probation.

In September of 1993, Garcia-Lopez moved to Seattle, Washington to obtain employment. As a result, he was in violation of his probation, which prohibited him from leaving California. He found a job and remained steadily employed for the next three years. In September 1996, Garcia-Lopez returned to Los Angeles to turn himself in for his probation violation. On September 16, 1996, the same state court judge that had heard Garcia-Lopez's initial case issued an order reinstating Garcia-Lopez's probation, designating the grand theft offense to which Garcia-Lopez had pleaded a misdemeanor, and dismissing the charges.

While Garcia-Lopez was working in Washington, he was detained by immigration authorities. On September 15, 1995, the Immigration & Naturalization Service (INS) commenced deportation proceedings against him. On December 21, 1995, through counsel, Garcia-Lopez admitted the allegations and conceded deportability, but applied for a suspension of deportation. On October 7, 1996, the Immigration Judge (IJ) granted the application. The IJ found that it was bound by the state court's classification of the offense as a misdemeanor, and therefore Garcia-Lopez remained eligible for suspension of deportation despite his conviction. The IJ also concluded that Garcia-Lopez met the remaining requirements for suspension of deportation, including finding that the deportation would be an extreme hardship on either Garcia-Lopez or a close member of his family.

INS filed a timely appeal to the BIA. On January 14, 2002, the BIA sustained the

Page 843

appeal and denied Garcia-Lopez's application for suspension of deportation on the basis that Garcia-Lopez did not meet the requirements of the petty offense exception. Garcia-Lopez filed this timely appeal on February 7, 2002.


Both parties concede that the instant case falls within the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).2 Under the transitional rules, we are precluded from reviewing "any discretionary decision" including decisions pursuant to 8 U.S.C. § 1182(a)(2). See IIRIRA § 309(c)(4)(g). However, we continue to retain jurisdiction to consider those elements of statutory eligibility that do not involve the exercise of discretion, including questions relating to whether a particular conviction constitutes a deportable offense. See Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (citing Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997)); Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997). Thus, we have jurisdiction under 8 U.S.C. § 1105(a) unless we determine that Garcia-Lopez does not meet the requirements for statutory eligibility. Lafarga, 170 F.3d at 1215.


In general, "[w]e review an agency's application of a statute de novo." Id. We accord deference to the INS's construction of a statute when it is a " 'construction of the statute which it administers.' " INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The instant case, however, involves a question of interpretation of the California Penal Code. Since this is not a statute which the BIA administers or has any particular expertise in interpreting, no deference is accorded to the BIA's interpretation.3


Under the INA, an alien is excludable if she is "convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of ... a crime involving moral turpitude." 8 U.S.C. § 1182(a)(2)(A)(i). However, there is a "petty offense" exception for cases in which:

the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months.

Page 844

8 U.S.C. § 1182(a)(2)(A)(ii)(II). We have previously determined that grand theft is a crime involving moral turpitude. See Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994). The INS concedes that Garcia-Lopez was not sentenced to a term of imprisonment in excess of six months, therefore the only question before us is whether Garcia-Lopez's guilty plea conviction under CAL. PENAL CODE § 487.2 was for a crime with a maximum penalty in excess of one year.

A. The California "Wobbler" Statute

Under California law, grand theft other than theft of a firearm is punishable by "imprisonment in a county jail not exceeding one yearor in the state prison." CAL. PENAL CODE § 489(b) (West 1992) (emphasis added). Because the offense can result in a range of punishments, § 487 is referred to as a "wobbler" statute, providing for either a misdemeanor or a felony conviction. Whether a "wobbler" is determined to be a misdemeanor or a felony is controlled by CAL. PENAL CODE § 17(b), which sets out the range of judgments by which an offense is categorized "for all purposes" subsequent to judgment. See CAL. PENAL CODE § 17(b) (West 1992); see also United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992); People v. Banks, 53 Cal.2d 370, 387, 1 Cal.Rptr. 669, 348 P.2d 102 (1959). Garcia-Lopez asserts that his offense is properly categorized as a misdemeanor under either § 17(b)(1) or (3). The INS contends that neither is applicable. 4

B. Treatment of Garcia-Lopez's Offense Under § 17(b)(1)

Garcia-Lopez initially contends that his offense is properly considered a misdemeanor because he was never sentenced to imprisonment in a state prison and was instead given probation and a period of confinement in the county jail. A wobbler offense is treated as a misdemeanor "[a]fter a judgment [imposes] a...

To continue reading