De La Torre-Medina v. Holder

320 F. App'x 801

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2009
• Docket: No. 06-73297
• Status: Published

Opinion

MEMORANDUM

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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.