Benjamin Gonzalez-Gonzalez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2019
• Docket: 15-71965
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BENJAMIN GONZALEZ-GONZALEZ, No. 15-71965 AKA Benjamin Gonzales, Agency No. A092-651-034 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 13, 2019** Pasadena, California

Before: BERZON, R. NELSON, and BADE, Circuit Judges.

Benjamin Gonzalez-Gonzalez (“Gonzalez”) seeks review of a

final administrative order denying his applications for cancellation of

removal and inadmissibility waivers. Gonzalez argues: (1) he was

not inadmissible at the time he adjusted to lawful permanent resident

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“LPR”) status because his convictions were misdemeanors under

California law, and (2) he may not be charged with removability

based on his 1984 and 1985 criminal convictions under Supreme

Court precedent. We have jurisdiction under 8 U.S.C. § 1252(a) and

deny the petition for review.

1. At the time Gonzalez adjusted his status in 1989, Gonzalez

had two felony convictions: the first in 1984 for possession or

purchase for sale of a controlled substance in violation of California

Health and Safety Code § 11351 and the second in 1985 for

attempting to burn a structure and commit an act preliminary thereto

in violation of California Penal Code § 455. Gonzalez argues that

neither of these were felony convictions because he only served

county jail time and under his interpretation of United States v.

Bridgeforth, 441 F.3d 864 (9th Cir. 2006), “a sentence to county jail

time automatically converts the offense to a misdemeanor for all

purposes.” The Bridgeforth decision considered one of California’s

“wobbler” statutes, id. at 871–72, which can be punished as either a

felony or misdemeanor offense. Arellano Hernandez v. Lynch, 831

F.3d 1127, 1132 (9th Cir. 2016). Neither of Gonzalez’s convictions

can be classified as “wobblers”—both are felonies punishable by

2 imprisonment for more than one year. See Cal. Health & Safety Code

§ 11351 (punishable by imprisonment for two, three, or four years);

Cal. Penal Code § 455 (punishable by imprisonment for 16 months,

two or three years). Further, even if the statutes were “wobblers,”

“[u]nder California law, a wobbler is presumptively a felony and

remains a felony except when the discretion is actually exercised to

make the crime a misdemeanor.” Ewing v. California, 538 U.S. 11,

16 (2003) (internal quotation marks omitted). Here, Gonzalez

received a two-year prison sentence for his drug conviction and the

state court never declared the offense to be a misdemeanor. Even

were § 11351 a wobbler, this sentence would have rendered the

conviction a felony—making Gonzalez inadmissible—regardless of

whether he only served time in county jail. See Arellano Hernandez,

831 F.3d at 1132.

2. Gonzalez is also incorrect that the Board of Immigration

Appeals could not rely on his 1984 and 1985 convictions to determine

that Gonzalez was ineligible for adjustment of status when he became

an LPR in 1989. Gonzalez’s reliance on Vartelas v. Holder, 566 U.S.

257 (2012), where the Supreme Court held that an LPR may not be

charged as inadmissible based on a conviction that occurred prior to

3 April 1, 1997, is misplaced. In Vartelas, the Court concluded that the

Illegal Immigration Reform and Immigrant Responsibility Act could

not be applied retroactively where it “attached a new disability (denial

of reentry) in respect to past events” (the petitioner’s conviction prior

to the enactment of the new law). Id. at 261.

Here, no new disability was attached to Gonzalez’s prior

convictions. Gonzalez adjusted to LPR status under § 1255a(b)(1), a

statutory provision that was enacted in 1986. See Immigration

Reform and Control Act of 1986, Pub. L. No. 99 – 603 § 201, 100

Stat. 3359, 3359 (1986). At the time § 1255a(b)(1) was enacted,

Gonzalez was not eligible to obtain LPR status through this new

provision, because of his prior convictions. When Congress enacted

§ 1255a(b)(1), it did not take away a prior right from individuals like

Gonzalez who had prior felony convictions in the United States; it

declined to grant those individuals a new right.

3. Gonzalez’s opposed motion to remand (Docket Entry No.

32) is denied. See Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th

Cir. 2019) (initial notice to appear need not include time and date to

vest jurisdiction in immigration court).

The petition for review is DENIED.