FILED
UNITED STATES COURT OF APPEALS JUL 18 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
ALFREDO MANALASTAS, Jr., No. 08-73260
Petitioner, Agency No. A036-124-784
v.
ORDER AMENDING
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM DISPOSITION
AND DENYING PETITION FOR
Respondent. REHEARING.
Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.
The Memorandum Disposition filed on May 18, 2012 is AMENDED as
follows:
On page 2 of the Memorandum Disposition, the following sentence is added,
“After Manalastas violated his probation, the state court terminated his probation
and ordered him to serve six months in county jail,” after the sentence which
states: “As a result, Manalastas received a one-year suspended sentence, 27 days in
jail, and three years of summary probation.” The next two sentences are also
modified to state the following:
Manalastas does not contest that his conviction under Section 273.5(a)
constitutes a “crime of violence” as defined by 18 U.S.C. § 16.
Instead, he contends that his actual sentence constitutes a term of
imprisonment of less than one year.
On pages 2–3 of the Memorandum Disposition, the following sentences are
inserted following the reference to 8 U.S.C. § 1101(a)(48)(B) and United States v.
Echavarria-Escobar, 270 F.3d 1265, 1270 (9th Cir. 2001):
Manlastas has not shown that the six-month sentence imposed after
his probation violation vacated and replaced the original one-year
sentence such that the original sentence had no legal effect for
immigration purposes. Cf. United States v. Moreno-Cisneros, 319
F.3d 456, 458 (9th Cir. 2003) (holding, in the sentencing context, that
a California “prison sentence imposed after revocation of probation
should be included in calculating the length of the sentence imposed
for the prior offense,” not that it should be considered a replacement
thereof) (emphasis added); see also Matter of Cota-Vargas, 23 I.&N.
Dec. 849, 852 (BIA 2005) (distinguishing between a trial court’s
decision to reduce a non-citizen’s criminal sentence ab initio, which
must be afforded full faith and credit by immigration judges and the
BIA, with a trial court’s decision to order a term of imprisonment, but
then suspend or execute it only in part, which does not alter the
immigration consequences of the original sentence).
Due to these modifications, the last sentence of the Memorandum
Disposition is deleted: “Given our resolution of this issue, we do not need to
address the separate arguments regarding how a sentence imposed pursuant to a
probation violation should be calculated for immigration purposes.”
An amended Memorandum Disposition will be filed simultaneously with
this order.
Petitioner’s Petition for Panel Rehearing is DENIED. No further petitions
for rehearing may be filed.
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FILED
NOT FOR PUBLICATION JUL 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALFREDO MANALASTAS, Jr., No. 08-73260
Petitioner, Agency No. A036-124-784
v.
AMENDED MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 10, 2012
Pasadena, California
Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.
Alfredo Manalastas, a native and citizen of the Philippines, petitions for
review of a final order of removal from the Board of Immigration Appeals (BIA).
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for
review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A non-citizen who has been convicted of an aggravated felony is not eligible
for cancellation of removal. 8 U.S.C. § 1229b(a)(3). The Immigration and
Nationality Act (INA) defines an “aggravated felony” as including a “crime of
violence . . . for which the term of imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F).
On June 12, 1996, Manalastas was convicted of violating California Penal
Code § 273.5(a). As a result, Manalastas received a one-year suspended sentence,
27 days in jail, and three years of summary probation. After Manalastas violated
his probation, the state court terminated his probation and ordered him to serve six
months in county jail. Manalastas does not contest that his conviction under
Section 273.5(a) constitutes a “crime of violence” as defined by 18 U.S.C. § 16.
Instead, he contends that his actual sentence constitutes a term of imprisonment of
less than one year.
The INA defines a “term of imprisonment” as “includ[ing] the period of
incarceration or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or sentence in
whole or in part.” 8 U.S.C. § 1101(a)(48)(B); see also United States v.
Echavarria-Escobar, 270 F.3d 1265, 1270 (9th Cir. 2001) (“[A] sentence [of at
least one year] that has been imposed, and subsequently suspended, constitutes an
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aggravated felony under 8 U.S.C. § 1101(a)(43).”). Manlastas has not shown that
the six-month sentence imposed after his probation violation vacated and replaced
the original one-year sentence such that the original sentence had no legal effect
for immigration purposes. Cf. United States v. Moreno-Cisneros, 319 F.3d 456,
458 (9th Cir. 2003) (holding, in the sentencing context, that a California “prison
sentence imposed after revocation of probation should be included in calculating
the length of the sentence imposed for the prior offense,” not that it should be
considered a replacement thereof) (emphasis added); see also Matter of Cota-
Vargas, 23 I.&N. Dec. 849, 852 (BIA 2005) (distinguishing between a trial court’s
decision to reduce a non-citizen’s criminal sentence ab initio, which must be
afforded full faith and credit by immigration judges and the BIA, with a trial
court’s decision to order a term of imprisonment, but then suspend or execute it
only in part, which does not alter the immigration consequences of the original
sentence). Because Manalastas received an initial suspended sentence of one year,
this conviction qualifies as an aggravated felony pursuant to 8 U.S.C.
§ 1101(a)(43)(F).
PETITION FOR REVIEW DENIED.
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