Alfredo Manalastas, Jr. v. Eric H. Holder Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2012
• Docket: 08-73260
• Status: Unpublished

Opinion

FILED UNITED STATES COURT OF APPEALS JUL 18 2012

MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

ALFREDO MANALASTAS, Jr., No. 08-73260

Petitioner, Agency No. A036-124-784

v. ORDER AMENDING ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM DISPOSITION AND DENYING PETITION FOR Respondent. REHEARING.

Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.

The Memorandum Disposition filed on May 18, 2012 is AMENDED as

follows:

On page 2 of the Memorandum Disposition, the following sentence is added,

“After Manalastas violated his probation, the state court terminated his probation

and ordered him to serve six months in county jail,” after the sentence which

states: “As a result, Manalastas received a one-year suspended sentence, 27 days in

jail, and three years of summary probation.” The next two sentences are also

modified to state the following:

Manalastas does not contest that his conviction under Section 273.5(a) constitutes a “crime of violence” as defined by 18 U.S.C. § 16. Instead, he contends that his actual sentence constitutes a term of imprisonment of less than one year. On pages 2–3 of the Memorandum Disposition, the following sentences are

inserted following the reference to 8 U.S.C. § 1101(a)(48)(B) and United States v.

Echavarria-Escobar, 270 F.3d 1265, 1270 (9th Cir. 2001):

Manlastas has not shown that the six-month sentence imposed after his probation violation vacated and replaced the original one-year sentence such that the original sentence had no legal effect for immigration purposes. Cf. United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003) (holding, in the sentencing context, that a California “prison sentence imposed after revocation of probation should be included in calculating the length of the sentence imposed for the prior offense,” not that it should be considered a replacement thereof) (emphasis added); see also Matter of Cota-Vargas, 23 I.&N. Dec. 849, 852 (BIA 2005) (distinguishing between a trial court’s decision to reduce a non-citizen’s criminal sentence ab initio, which must be afforded full faith and credit by immigration judges and the BIA, with a trial court’s decision to order a term of imprisonment, but then suspend or execute it only in part, which does not alter the immigration consequences of the original sentence).

Due to these modifications, the last sentence of the Memorandum

Disposition is deleted: “Given our resolution of this issue, we do not need to

address the separate arguments regarding how a sentence imposed pursuant to a

probation violation should be calculated for immigration purposes.”

An amended Memorandum Disposition will be filed simultaneously with

this order.

Petitioner’s Petition for Panel Rehearing is DENIED. No further petitions

for rehearing may be filed.

2 FILED NOT FOR PUBLICATION JUL 18 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

v. AMENDED MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted May 10, 2012 Pasadena, California

Alfredo Manalastas, a native and citizen of the Philippines, petitions for

review of a final order of removal from the Board of Immigration Appeals (BIA).

We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for

review.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. A non-citizen who has been convicted of an aggravated felony is not eligible

for cancellation of removal. 8 U.S.C. § 1229b(a)(3). The Immigration and

Nationality Act (INA) defines an “aggravated felony” as including a “crime of

violence . . . for which the term of imprisonment [is] at least one year.” 8 U.S.C.

§ 1101(a)(43)(F).

On June 12, 1996, Manalastas was convicted of violating California Penal

Code § 273.5(a). As a result, Manalastas received a one-year suspended sentence,

27 days in jail, and three years of summary probation. After Manalastas violated

his probation, the state court terminated his probation and ordered him to serve six

months in county jail. Manalastas does not contest that his conviction under

Section 273.5(a) constitutes a “crime of violence” as defined by 18 U.S.C. § 16.

Instead, he contends that his actual sentence constitutes a term of imprisonment of

less than one year.

The INA defines a “term of imprisonment” as “includ[ing] the period of

incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.” 8 U.S.C. § 1101(a)(48)(B); see also United States v.

Echavarria-Escobar, 270 F.3d 1265, 1270 (9th Cir. 2001) (“[A] sentence [of at

least one year] that has been imposed, and subsequently suspended, constitutes an

2 aggravated felony under 8 U.S.C. § 1101(a)(43).”). Manlastas has not shown that

the six-month sentence imposed after his probation violation vacated and replaced

the original one-year sentence such that the original sentence had no legal effect

for immigration purposes. Cf. United States v. Moreno-Cisneros, 319 F.3d 456,

458 (9th Cir. 2003) (holding, in the sentencing context, that a California “prison

sentence imposed after revocation of probation should be included in calculating

the length of the sentence imposed for the prior offense,” not that it should be

considered a replacement thereof) (emphasis added); see also Matter of Cota-

Vargas, 23 I.&N. Dec. 849, 852 (BIA 2005) (distinguishing between a trial court’s

decision to reduce a non-citizen’s criminal sentence ab initio, which must be

afforded full faith and credit by immigration judges and the BIA, with a trial

court’s decision to order a term of imprisonment, but then suspend or execute it

only in part, which does not alter the immigration consequences of the original

sentence). Because Manalastas received an initial suspended sentence of one year,

this conviction qualifies as an aggravated felony pursuant to 8 U.S.C.

PETITION FOR REVIEW DENIED.