On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-131-757.
The opinion of the court was delivered by: Tashima, Circuit Judge
Argued and Submitted June 12, 2008 -- San Francisco, California
Before: A. Wallace Tashima, M. Margaret McKeown, and Ronald M. Gould, Circuit Judges.
Moises Eduardo Morales-Garcia ("Morales") petitions for review of a final order of removal based on the Immigration Judge's ("IJ") and Board of Immigration Appeals' ("BIA") determination that his conviction under California Penal Code § 273.5(a) is categorically a crime involving moral turpitude ("CIMT"), precluding cancellation of removal under § 240A(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b). We have jurisdiction under 8 U.S.C. § 1252(a)(1) (providing for judicial review of a final order of removal) and 8 U.S.C. § 1252(a)(2)(D) (providing for judicial review of constitutional and legal questions raised by individuals found removable based on criminal activity). See Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056-57 (9th Cir. 2006). Because we hold that § 273.5(a) is not categorically a CIMT, we grant the petition for review and remand the case to the BIA for further proceedings.
Morales, a native and citizen of Mexico, entered the United States without inspection near San Ysidro, California, in September, 1986. In 2006, the Department of Homeland Security ("DHS") served a Notice to Appear ("NTA") on Morales, alleging that he was subject to removal on two grounds: first, for being an alien present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and second, for having been convicted of a CIMT, see id. § 1182(a)(2)(A)(i)(I). The NTA alleged that on April 10, 2003, Morales was convicted in California Superior Court "for the offense of corporal injury to spouse/ cohabitant/former cohabitant/child's parent, a Felony, in violation of Section 273.5(a) of the California Penal Code for which the term of imprisonment was two . . . years . . . ."
At his hearing before the IJ, Morales conceded removability; however, he denied the fact of his conviction under Cal. Penal Code § 273.5. The government adduced a certified copy of an abstract of judgment and prison commitment order, showing both that Morales was convicted of the offense and that he was sentenced to two years' imprisonment. According to those documents, Morales pleaded guilty to a violation of § 273.5(a), and the court imposed a low term of 2 years, doubled to 4 years, under California's habitual offender statute, Cal. Penal Code § 667(b)-(i).*fn2 The record also contains a copy of the criminal complaint, which alleges:
On or about the 23rd day of March, 2003, in the County of El Dorado, the crime of CORPORAL INJURY TO SPOUSE/COHABITANT/FORMER COHABITANT/CHILD'S PARENT, in violation of PENAL CODE SECTION 273.5(a), a felony, was committed by MOISES EDUARDO MORALES, who did willfully and unlawfully inflict corporal injury resulting in a traumatic condition upon Martha Adriana Salazar, who was cohabiting with defendant.
The IJ sustained the factual allegations in the NTA and, based on that determination, the IJ also sustained the charge of removability on the ground that Morales had been convicted of a CIMT.
At the hearing, Morales also raised the possibility that he was eligible for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Instead of simply requesting a § 212(h) waiver, however, Morales' asserted that the waiver, if granted, would make him eligible for cancellation of removal under 8 U.S.C. § 1229b(b). The IJ clarified this argument for the government in the following exchange:
DHS: Well, I'm not sure where the respondent's counsel is going with this in regards to the [conviction under Cal. Penal Code §] 273.5.
IJ: That's why I assume it was, that's why I assumed you would like to brief concurrently. What he's saying is he can tender ...