Jose Cruz v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION AUG 01 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE SANTOS CRUZ, No. 09-71655

Petitioner, Agency No. A094-227-957

v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted May 10, 2013**
Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, Senior District
Judge.*

This case is REMANDED to the Board of Immigration Appeals (“BIA”) to

determine whether Petitioner’s conviction qualifies as a misdemeanor under either

California Penal Code section 17(b)(1) or 17(b)(3). See Ferreira v. Ashcroft, 382

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*
The Honorable Wiley Y. Daniel, Senior District Judge for the U.S.
District Court for Colorado, sitting by designation.
F.3d 1045, 1051 (9th Cir. 2004) (“Once the state court sentenced [Petitioner] to a

county jail term rather than a term in the state prison, the offense automatically

converted from a felony into a misdemeanor for all purposes.”), overruled on other

grounds by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc); Garcia-

Lopez v. Ashcroft, 334 F.3d 840, 842 (9th Cir. 2003) (The “state court’s declaration

that [Petitioner’s] offense was a misdemeanor is binding on [Petitioner’s]

subsequent immigration proceedings[.]”), overruled on other grounds by Ceron v.

Holder, 747 F.3d at 778.

We are also concerned about the apparent ineffectiveness of petitioner’s

counsel. The BIA’s April 29, 2009 decision explained: “The respondent has a

valid ‘conviction’ for immigration purposes and his planned future collateral attack

upon that conviction does not operate to negate its validity until it is in fact

overturned or materially amended.” On July 17, 2009, within the 90 day window

to reopen with the BIA, Petitioner’s conviction was materially amended. The

Superior Court “reduc[ed] the felony offense to a misdemeanor” under California

Penal Code section 17. Petitioner’s counsel, however, did not move to reopen with

the BIA to submit this new evidence. Ineffective assistance of counsel can toll the

deadline to file a motion to reopen. See Avagyan v. Holder, 646 F.3d 672, 677 (9th
Cir. 2011). Petitioner may wish to obtain new counsel.1 Alternatively, the BIA

might consider appointment of pro bono counsel.

Petitioner’s removal is STAYED pending the resolution of his appeal. The

panel retains jurisdiction over subsequent appeals in this case.

Petitioner’s counsel is ordered to serve Mr. Cruz a copy of this order at his

last known address.

LIMITED REMAND

1
Organizations such as the following may be able to provide pro bono legal
counsel: The Central American Resource Center (CARECEN), (213) 385-7800
ext.171, 2845 West 7th Street, Los Angeles, CA 90005, www.carecen-la.org;
Legal Aid Foundation of Los Angeles (LAFLA), (800) 399-4529, 5228 Whittier
Blvd., Los Angeles, CA 90022, www.lafla.org.