- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 03-31-2014
- Case #: 08-70836
- Judge(s)/Court Below: \En Banc: Circuit Judge Graber for the Court; Chief Judge Kozinski, Circuit Judges Reinhardt, Silverman, Gould, Paez, Clifton, R. Smith, Murguia, and Hurwitz; Dissent by Judge Bea
- Full Text Opinion
Petitioner is a native citizen of El Salvador and lawful permanent resident of the United States. In 2006, Ceron plead nolo contendere to assault charges in California under the California Penal Code (“CPC”) section 245(a)(1). Section 245(a)(1) prohibits "an assault upon the person of another with a deadly weapon or instrument other than a firearm." Petitioner was sentenced to 36 months of probation, 364 days in jail, but awarded him credit for the 364 days he had already spent in jail. The federal government informed Petitioner that he was removable under 8 U.S.C. § 1227(a)(2)(A)(i), because Petitioner had been convicted of a crime of "moral turpitude" for which he could be sentenced for over one year in prison. An immigration judge ordered Petitioner to be removed. Petitioner appealed, and the Board of Immigration Appeals dismissed, holding that conviction for assault with a deadly weapon constitutes a crime involving moral turpitude. Petitioner again appealed, which a three-judge panel denied. The Ninth Circuit chose to rehear the case en banc. The Court first found that although the statute the petitioner was sentenced under was classified as a "wobbler"-- conviction which can result in either a misdemeanor or a felony—his crime qualified as “a crime for a sentence of one year or longer” because the court could have imposed a conviction of one year or greater for a felony or misdemeanor. The Court then analyzed whether the crime was of “moral turpitude”. The Court could not determine whether the use of a deadly weapon under the CPC 245(a)(1) was clearly a crime of “moral turpitude” and remanded the case back to the Board of Immigration Appeals to determine whether a crime under 245(a)(1) is a crime of “moral turpitude”. Petition GRANTED and case REMANDED for further proceedings.