Ceron v. Holder

• Decision Date: 31 March 2014
• Docket Number: No. 08–70836.,08–70836.
• Citation: 747 F.3d 773
• Parties: Ruben Adolfo CERON, aka Ruben Ceron–Casco, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

747 F.3d 773

Ruben Adolfo CERON, aka Ruben Ceron–Casco, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08–70836.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Dec. 11, 2013.

Filed March 31, 2014.

Mario Acosta, Jr. (argued), Law Office of Mario Acosta, Jr., PLC, Los Angeles, California; and Elsa I. Martinez, Law Office of Elsa Martinez, PLC, Los Angeles, California, for Petitioner.

Bryan S. Beier (argued), Carol Federighi, and Cindy S. Ferrier, Senior Litigation Counsel, Stuart F. Delery, Assistant Attorney General, Tony West, Assistant Attorney General, and Joseph O'Connell, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Vincent J. Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, California; Charles Roth, National Immigrant Justice Center, Chicago, Illinois, and Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington; and Thomas E. Gorman, Keker & Van Nest LLP, San Francisco, California, for Amici Curiae.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073–969–493.

Before: ALEX KOZINSKI, Chief Judge, and STEPHEN REINHARDT, BARRY G. SILVERMAN, SUSAN P. GRABER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD R. CLIFTON, CARLOS T. BEA, N. RANDY SMITH, MARY H. MURGUIA, and ANDREW D. HURWITZ, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge BEA.

OPINION

GRABER, Circuit Judge:

Petitioner Ruben Adolfo Ceron seeks review of the Board of Immigration Appeals' (“BIA”) decision that his conviction for assault with a deadly weapon, in violation of California Penal Code section 245(a)(1), is a removable offense under 8 U.S.C. § 1227(a)(2)(A)(i) because it is (I) “a crime involving moral turpitude” (II) “for which a sentence of one year or longer may be imposed.” Reviewing de novo whether Petitioner's conviction meets those requirements, Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008); Garcia–Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir.2003), we grant the petition and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a native and citizen of El Salvador and a lawful permanent resident of the United States. In 2006, he pleaded nolo contendere in California state court to having violated California Penal Code section 245(a)(1), which proscribes “an assault upon the person of another with a deadly weapon or instrument other than a firearm.” ¹ The state court suspended the imposition of a sentence and imposed, instead, 36 months of probation. As a term and condition of probation, the state court prescribed a 364–day jail term and gave Petitioner credit for the 364 days that he actually served in the county jail.

The federal government issued Petitioner a notice to appear, alleging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) because he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer could have been imposed. The immigration judge sustained the charge of removability and ordered Petitioner removed.

The BIA issued its own decision and dismissed Petitioner's appeal. The BIA first held that, whether Petitioner's conviction was for a misdemeanor or for a felony, the state statute permits a sentence of imprisonment of at least one year. The BIA next held that a conviction for an assault with a deadly weapon under California Penal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude.

Petitioner timely petitioned for review. A three judge panel denied the petition. Ceron v. Holder, 712 F.3d 426 (9th Cir.2013). We then granted rehearing en banc. 730 F.3d 1133 (9th Cir.2013).

DISCUSSION

Title 8 U.S.C. § 1227(a)(2)(A)(i), titled “Crimes of moral turpitude,” provides:

Any alien who—

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable.

Petitioner argues that his conviction met neither statutory requirement. We first address whether his conviction was for “a crime for which a sentence of one year or longer may be imposed.” Id. § 1227(a)(2)(A)(i)(II). We then address whether California Penal Code section 245(a)(1) categorically defines “a crime involving moral turpitude.” Id. § 1227(a)(2)(A)(i)(I).

A. “ Sentence of One Year or Longer ”

California Penal Code section 245(a)(1) directs that Petitioner “shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.” Consulting the statutory text, the state court could have imposed a sentence of up to four years in state prison, which plainly is “a sentence of one year or longer.” 8 U.S.C. § 1227(a)(2)(A)(i)(II). In California, however, the analysis is not quite that simple.

Statutes such as section 245(a)(1) are known in California as “wobblers” because the state court can treat a conviction under section 245(a)(1) either as a felony or as a misdemeanor. See, e.g., Ewing v. California, 538 U.S. 11, 16–17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (describing “wobblers”). If the conviction is a felony, then the “state prison” provision applies and the maximum penalty is four years in state prison. Ceron, 712 F.3d at 430;Cal.Penal Code § 17(a). But if the conviction is a misdemeanor, then the “county jail” provision applies and the maximum penalty is one year in county jail. Ceron, 712 F.3d at 430;Cal.Penal Code § 17(a).

For our purposes, it does not matter whether Petitioner's conviction was a felony or a misdemeanor. If it was a felony, then the maximum penalty was imprisonment for four years in the state prison. If it was a misdemeanor, then the maximum penalty was incarceration for one year in the county jail. In either event—four years or one year—the state court could have imposed “a sentence of one year or longer.” 8 U.S.C. § 1227(a)(2)(A)(i)(II). Petitioner's conviction meets the federal statutory requirement either way. In summary, the BIA correctly held that Petitioner's conviction was for “a crime for which a sentence of one year or longer may be imposed.” Id.

In reaching that conclusion, we overrule two of our earlier cases, which misstated California law. In Garcia–Lopez, 334 F.3d at 846, we wrote: “Because the offense of which he was convicted was a misdemeanor, Garcia–Lopez's maximum possible penalty under California law was less than six months. SeeCal.Penal Code § 19 (West 1992).” Similarly, in Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir.2004), we held that, “[u]nder California law, the maximum penalty for a misdemeanor is six months' imprisonment.” (Citing Garcia–Lopez, 334 F.3d at 846.)

Those decisions misunderstood how the state law operates. California Penal Code section 19 specifies a general statutory maximum penalty of six months' imprisonment in the county jail for all misdemeanors, “ [e]xcept in cases where a different punishment is prescribed by any law of this state.” (Emphasis added.) That is, whenever the criminal statute in question prescribes a different maximum penalty, the six-month default maximum simply does not apply. For example, as described above, section 245(a)(1) specifies a maximum imprisonment for misdemeanor convictions of one year in the county jail. Therefore, the default statutory maximum of six months, prescribed by section 19, is inapplicable. Although the criminal statutes at issue in Garcia–Lopez and Ferreira also prescribed different maximum terms for misdemeanor convictions, we erroneously held that section 19's default six-month maximum applied. See Ceron, 712 F.3d at 430–32 (describing this issue in detail). Accordingly, we overrule that aspect of those cases.

B. “ Crime Involving Moral Turpitude ”

We next analyze whether California Penal Code section 245(a)(1) categorically defines “a crime involving moral turpitude.” 8 U.S.C. § 1227(a)(2)(A)(i)(I). “The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps....” Castrijon–Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013) (internal quotation marks and brackets omitted). “The first step is to identify the elements of the statute of conviction.” Id. Because the BIA lacks expertise in identifying the elements of state statutes, we review the first step de novo. Id. “The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition.” Id. Because the BIA has expertise in that task, we defer to its conclusion if warranted, following the Chevron framework if the decision is published or directly controlled by a published decision, and otherwise following the Skidmore framework. Id.

Accordingly, we begin by discussing the elements of California Penal Code section 245(a)(1). We then discuss whether we must defer to the BIA's decision in this case that section 245(a)(1) categorically constitutes a crime involving moral turpitude.

1. Elements of California Penal Code section 245(a)(1)

California Penal Code section 245(a)(1) prohibits “an assault upon the person of another with a deadly weapon or instrument other than a firearm.” A “deadly weapon or instrument” is “one that is used in such a manner as to be capable of producing death or great bodily injury.” People v. Aguilar, 16 Cal.4th 1023, 68 Cal.Rptr.2d 655, 945 P.2d 1204, 1210 (1997) (emphasis omitted). The weapon “must be an object extrinsic to the human body. Bare hands or feet, therefore, cannot be deadly weapons....” Id. An assault does not require actual harm or even physical contact. See id., 68 Cal.Rptr.2d 655, 945 P.2d at 1207 (“One may commit an assault...