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NOT FOR PUBLICATION AUG 01 2014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.