Antonio Perez Ramirez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 13 2014

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

FOR THE NINTH CIRCUIT

ANTONIO PEREZ RAMIREZ, No. 10-71198

Petitioner, Agency No. A092-977-843

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted February 10, 2014**
Pasadena, California

Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.

Antonio Perez Ramirez (“Perez Ramirez”) petitions for review from a

decision by the Board of Immigration Appeals (“BIA”) finding him removable as

an alien convicted of an aggravated felony. Matter of Perez Ramirez, 25 I. & N.

Dec. 203, 208 (BIA 2010). We lack jurisdiction to review the final order of

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal based on Perez Ramirez’s conviction for an aggravated felony, 8 U.S.C.

§ 1252(a)(2)(C), but we “have jurisdiction to determine as a matter of law whether

[his] conviction constitutes an aggravated felony” rendering him removable.

Prakash v. Holder, 579 F.3d 1033, 1035 (9th Cir. 2009). We deny the petition.

The BIA did not err in finding Perez Ramirez removable.

First, his “conviction under California Penal Code [Section] 273.5(a) is a

categorical crime of violence under 18 U.S.C. [Section] 16(a)[.]” Banuelos-Ayon

v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010); see also United States v. Ayala-

Nicanor, 659 F.3d 744, 752 (9th Cir. 2011) (reaffirming Banuelos-Ayon).

Second, his conviction was accompanied by a term of imprisonment of at

least one year. The Immigration and Nationality Act unambiguously defines “term

of imprisonment” in the context of this case. 8 U.S.C § 1101(a)(48)(B) (“Any

reference to a term of imprisonment or a sentence with respect to an offense is

deemed to include 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.”). Here, when Perez Ramirez pled

guilty to violating Section 273.5(a), the superior court suspended imposition of

sentence and placed him on probation. The superior court subsequently revoked

probation and imposed a 365-day jail term under Section 273.5(a). The imposition

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of a jail term following an original suspension of sentence is clearly contemplated

by “term of imprisonment” as defined in 8 U.S.C. Section 1101(a)(48)(B).

DENIED.

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 FILED
Perez Ramirez v. Holder, No. 10-71198 MAR 13 2014

MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, concurring in the judgment: U.S. COURT OF APPEALS

I concur in the result but disagree with the majority’s analysis. Perez

Ramirez was placed on probation with imposition of sentence suspended following

a conviction for violating California Penal Code section 273.5(a). One month shy

of completing probation, he stipulated to violating the terms of probation; as a

result, the court revoked his probation and reinstated it with the condition that

Perez Ramirez serve 365 days of imprisonment in county jail.

The Board of Immigration Appeals (“BIA”) found Perez Ramirez removable

under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony

after admission to the United States. See Matter of Perez Ramirez, 25 I. & N. Dec.

203, 208 (B.I.A. 2010). The Immigration and Nationality Act (“INA”) defines

“aggravated felony” inter alia as “a crime of violence . . . for which the term of

imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F) (emphasis added).

On appeal, Perez Ramirez urges us to consider only his initial probationary

sentence in determining whether the term of imprisonment accompanying his

conviction under California Penal Code section 273.5(a) qualifies for purposes of

removability. The majority rejects this proposition on the ground that the INA at 8

U.S.C. § 1101(a)(48)(B) has “unambiguously define[d] ‘term of imprisonment’ in

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the context of this case” to include sentences imposed following violation of

probation. Mem. Dispo. at 2. I respectfully disagree with the majority’s view that

Congress has in § 1101(a)(48)(B) “directly spoken to the precise question at issue.”

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

Instead, I would analyze the BIA’s interpretation of “term of imprisonment” as

used in § 1101(a)(43)(F) under the two-step analysis enunciated in Chevron, and

affirm the BIA’s reading as “a permissible construction of the statute.” Id. at 843.

I.

“Our analysis begins, as always, with the statutory text.” United States v.

Gonzales, 520 U.S. 1, 4 (1997). Here, § 1101(a)(48)(B) says absolutely nothing on

the topic of sentences imposed following a violation of probation. Rather, it

merely defines “term of imprisonment . . . to include 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.” §

1101(a)(48)(B). Thus, as the Third Circuit has noted, by its very terms, §

1101(a)(48)(B) simply serves as “an instruction about how to treat suspended

sentences” under the INA. United States v. Graham, 169 F.3d 787, 790 (3d Cir.

1999); see also United States v. Mondragon-Santiago, 564 F.3d 357, 368–69 (5th

Cir. 2009) (“[Section 1101(a)(48)(B)] requires the sentencing court in the first

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instance to order or impose imprisonment as part of the sentence, regardless of a

later suspension.”).

We ourselves said as much in Retuta v. Holder, 591 F.3d 1181 (9th Cir.

2010). In agreeing with the petitioner that § 1101(a)(48), as a whole, “excludes

suspended sentences that do not involve a prison sentence,” we noted that “[t]he

placement of both sub-sections (A) and (B) in section 1101(a)(48) indicates they

should be read together.” Id. at 1187, 1189. Thus, we concluded that

“[s]ubsection (B) . . . modifies subsection (A)’s test of conviction to include a

suspended period of incarceration as a ‘punishment, penalty, or restraint on the

alien’s liberty.’” Id. at 1189 (emphasis added). Our reading of § 1101(a)(48)(B) in

Retuta thus underscores the conclusion that Congress specifically sought to

“address[] the suspension of sanctions in subsection (B).” Id. at 1188 (emphasis

added). Consequently, subsection (B) does nothing to render unambiguous the

treatment of sentences imposed following violation of probation.

It is little wonder, then, that Judge Fletcher has previously (and, in my view,

correctly) concluded that, “[i]n contrast to [§ 1101(a)(48)(B)’s] explicit inclusion

of a suspended sentence in the definition of ‘term of imprisonment,’ the statute

says nothing about a sentence imposed as a result of a violation of probation.”

United States v. Moreno-Cisneros, 319 F.3d 456, 463 (9th Cir. 2003) (Fletcher, J.,

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dissenting) (emphasis added). The Eleventh Circuit has similarly observed that

“[t]he Immigration and Nationality Act [at § 1101(a)(48)(B)] does not specifically

note whether a ‘term of imprisonment’ includes sentences imposed because of

probation revocation.” United States v. Rosado-Sabido, 443 F. App’x 444, 446

(11th Cir. 2011) (emphasis added).

II.

The majority sidesteps § 1101(a)(48)(B)’s glaring silence on the topic of

sentences imposed following violation of probation by reasoning that “[t]he

imposition of a jail term following an original suspension of sentence is clearly

contemplated by ‘term of imprisonment’ as defined in 8 U.S.C. Section

1101(a)(48)(B).” Mem. Dispo. at 3. The majority errs by failing to read §

1101(a)(48)(B) in conjunction with § 1101(a)(43)(F), which offers the governing

definition for “aggravated felony.” While § 1101(a)(48)(B) makes clear that a

suspended sentence qualifies as a “term of imprisonment” for purposes of the INA,

§ 1101(a)(43)(F) specifically refers to “a crime of violence . . . for which the term

of imprisonment [is] at least one year.” (Emphasis added.)

Given this, the key inquiry is whether Perez Ramirez has suggested a

reasonable interpretation of § 1101(a)(43)(F) in asking us to consider only his first

probationary sentence for purposes of assessing his removability. I find this

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reading at least debatable in light of § 1101(a)(43)(F)’s use of the definite article

“the,” as opposed to (for example) the indefinite article “a.” Section

1101(a)(43)(F)’s use of the phrase “the term of imprisonment” could be read as

referring only to the initial sentence accompanying the alien’s conviction for a

crime of violence—in Perez Ramirez’s case, that would be probation with no term

of imprisonment imposed. In contrast, if § 1101(a)(43)(F) had employed the

phrase “a term of imprisonment,” clearly the 365-day period of incarceration Perez

Ramirez received following his violation of probation would count.1

The following example helps to illustrate further the operation of §

1101(a)(48)(B) and the ambiguity in § 1101(a)(43)(F). In the case of People v.

Wilcox,

[t]he trial court suspended imposition of sentence and placed defendant
on five years’ formal probation with 120 days in county jail. When
defendant later admitted to violating his probation, the trial court
imposed a 16-month state prison term, stayed execution of sentence,
and reinstated probation. After defendant admitted another probation
violation, the trial court terminated probation and ordered execution of
the previously imposed 16-month state prison term.

158 Cal. Rptr. 3d 502, 503–04 (Cal. Ct. App. 2013). Under § 1101(a)(43)(F), the

sixteen-month state prison term actually imposed could qualify as a sufficient

1
Compare, for example, 8 U.S.C. § 1226(c)(1)(C), which concerns the
detention of criminal aliens deportable for various offenses when “the alien has
been sentence[d] to a term of imprisonment of at least 1 year.” (Emphasis added.)

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“term of imprisonment” for purposes of an “aggravated felony” conviction under

the INA. Under § 1101(a)(48)(B), the sixteen-month state prison term for which

execution was suspended could also qualify. Section 1101(a)(43)(F)’s reference to

“a crime of violence . . . for which the term of imprisonment [is] at least one year”

could be read, however, to refer only to Wilcox’s 120-day county jail term.2

III.

Thus, given the foregoing analysis, I cannot conclude that § 1101(a)(48)(B)

“unambiguously defines ‘term of imprisonment’ in the context of this case.” Mem.

Dispo. at 2. I do find, however, the BIA’s reading of “term of imprisonment” as

including terms of imprisonment imposed following violation of probation to be an

eminently reasonable one under the plain statutory text and our past precedent.

See, e.g., United States v. Jimenez, 258 F.3d 1120, 1125–26 (9th Cir. 2001). As

such, I would affirm the BIA’s finding of removability at Chevron Step Two. See

Chevron, 467 U.S. at 843.

2
And, of course, under Chevron, the question is not whether this reading
“represents the best interpretation of the statute, but whether it represents a
reasonable one.” Atl. Mut. Ins. Co. v. C.I.R., 523 U.S. 382, 389 (1998).

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