Arturo Franco v. Eric H. Holder Jr. , 362 F. App'x 868 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARTURO SINAI FRANCO, No. 08-75046
Petitioner, Agency No. A096-811-436
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2010
San Francisco, California
Before: NOONAN, HAWKINS, and M. SMITH, Circuit Judges.
Arturo Sinai Franco, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’s (BIA) order dismissing his appeal from an
immigration judge’s (IJ) decision denying his application for cancellation of
removal. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for
review and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Franco pleaded guilty under section 245(a)(1) of the California Penal Code,
which is a “wobbler” statute. See Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844
(9th Cir. 2003). We recognize that California law treats a person who pleads guilty
to a wobbler as “‘acquir[ing] the status . . . not then final . . . of a person convicted
of a felony.’” Id. at 844 n.5 (quoting People v. Banks, 348 P.2d 102, 113 (Cal.
1959)).
Nevertheless, the plea under a wobbler may still result in a misdemeanor
conviction under California law. For example, in this case, the state trial judge
could have ultimately imposed a sentence other than imprisonment in state prison,
or alternatively, could have declared Franco’s offense under section 245(a)(1) to be
a misdemeanor. Either would have resulted in Franco being convicted of a
misdemeanor under California law, see Cal. Penal Code § 17(b)(1), (3), possibly
making him eligible for cancellation of removal.
In this case, however, the federal government deprived Franco of having the
trial judge make such a determination. Franco was scheduled to appear in state
court for a sentencing hearing on February 25, 2008, a little more than a month
after the entry of his guilty plea. But before Franco had the opportunity to attend
his hearing, the Department of Homeland Security (DHS) took Franco into its
custody and detained him in Arizona pending his immigration hearing. If DHS
had allowed Franco to appear at his sentencing hearing, it would have been
properly left to the trial judge to determine the nature of Franco’s conviction. Yet
DHS foreclosed any chance of that scenario from being realized.
The government cannot have it both ways: it cannot benefit from treating a
wobbler as a felony until a judgment comes down, yet prevent a person from
qualifying as a misdemeanant under a wobbler by whisking him away before
sentencing and judgment. Because DHS deprived Franco of the opportunity to
qualify as a misdemeanant, we remand for the BIA to reconsider Franco’s
application for cancellation of removal under the presumption that Franco’s
violation of Cal. Penal Code section 245(a)(1) constitutes a misdemeanor.
PETITION FOR REVIEW GRANTED and REMANDED.