U.S. Court of Appeals for the Ninth Circuit, 2009

De La Torre-Medina v. Holder

U.S. Court of Appeals for the Ninth Circuit · Decided April 2, 2009 · Edmunds, Kozinski, Noonan

320 F. App'x 801

Counsel

Martin Avila Robles, Christopher John Stender, Esquire, Immigration Practice Group A Professional Corporation, San Francisco, CA, for Petitioner., Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, OIL, U.S. Department of Justice, Michele Yvette Frances Sarko, Esquire, Dana Michelle Camilleri, Office of Immigration Litigation, Washington, DC, for Respondent.

Opinion of the Court

*802MEMORANDUM **

The BIA correctly found that petitioner could have been sentenced to a year in jail for his conviction under Cal.Penal Code § 245(a)(1), as required by 8 U.S.C. § 1227(a)(2)(A)(i). See CaLPenal Code § 19 (prescribing the available punishments for misdemeanors “[ejxcept in cases where a different punishment is prescribed by any law of this state”); Cal.Penal Code § 245(a)(1) (authorizing punishment of up to one year in county jail).

However, petitioner challenged before the IJ whether his conviction was for a crime involving moral turpitude, and the BIA issued a Burbano affirmance of the IJ’s decision. Petitioner thus exhausted his administrative remedies. See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008). We therefore remand to the BIA to reconsider, in light of Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) and In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), whether petitioner was convicted of a CIMT.

PETITION GRANTED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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