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Saavedra-Figueroa v. Holder

November 5, 2010

MARIO EDUARDO SAAVEDRA-FIGUEROA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A030-036-877.

The opinion of the court was delivered by: Callahan, Circuit Judge

FOR PUBLICATION

Argued and Submitted April 15, 2010 -- San Francisco, California

Before: Alex Kozinski, Chief Judge, Glenn L. Archer, Jr., Senior Circuit Judge,*fn1 and Consuelo M. Callahan, Circuit Judge.

OPINION

Mario Saavedra-Figueroa ("Saavedra-Figueroa") is a native and citizen of Chile who has been a United States lawful permanent resident since 1970. The Board of Immigration Appeals ("BIA") determined that Saavedra-Figueroa was removable because he had been convicted of an aggravated felony and two crimes of moral turpitude ("CIMTs") after admission, pursuant to the Immigration and Nationality Act ("INA") § 237(a)(2)(A)(ii)-(iii), 8 U.S.C. § 1227(a)(2)(A)(ii)-(iii). The aggravated felony conviction was subsequently vacated. Saavedra-Figueroa now petitions for review of the BIA's decision, contending that the remaining two convictions the BIA alleged-for misdemeanor false imprisonment under California Penal Code § 236-are not categorical CIMTs. We agree and grant the petition for review.

I.

In 2005, Saavedra-Figueroa was served with a Notice to Appear ("NTA") that asserted he was removable under (1) INA § 237(a)(2)(A)(iii) for conviction of an aggravated felony as defined in INA § 101(a)(43)(A) (sexual abuse of a minor); and (2) INA § 237(a)(2)(A)(ii) for conviction of two CIMTs not part of the same criminal scheme. The NTA alleged he had been convicted of gross sexual imposition of a minor in violation of North Dakota Century Code § 12.1-20-03(2), and twice convicted of misdemeanor false imprisonment under California Penal Code § 236.

At a hearing before an immigration judge ("IJ"), SaavedraFigueroa admitted all three allegations. The IJ, finding that Saavedra-Figueroa's North Dakota conviction was an aggravated felony and his two California convictions were CIMTs, sustained both charges of removability, and ordered him removed to Chile. The BIA affirmed in a per curium order.

Saavedra-Figueroa filed a timely petition for review in this court.*fn2 While his appeal was pending, he filed an application for post-conviction relief in a North Dakota state court, seeking to have his guilty plea to the gross sexual imposition charge withdrawn. The state court granted the application and vacated the conviction.

The government then filed in this court an unopposed motion to remand to the BIA for it to determine how the vacated North Dakota conviction affected SaavedraFigueroa's case. The motion requested that we direct the BIA to "return the case" to us if it determined that SaavedraFigueroa was removable. We remanded the case to the BIA without indicating whether we would resume control following the BIA's decision.

In March 2007, the BIA ruled that Saavedra-Figueroa's North Dakota conviction was no longer valid for immigration purposes. The BIA vacated its August 2005 decision and remanded the case to the IJ.

Saavedra-Figueroa then filed a motion for reconsideration with the BIA, contending that our remand order required that his case be returned to us. In June 2007, the BIA granted his motion to reconsider, but explained that it could not "return a record of proceedings to [our] court." Instead, it vacated its March 2007 order insofar as that order remanded proceedings to the IJ. It stated that because its March 2007 order had not revisited Saavedra-Figueroa's removability for his CIMT convictions, its August 2005 determination of removability for those convictions was "a final administrative order of removal from which [Saavedra-Figueroa could] continue to pursue further relief before the Ninth Circuit."

II.

We determine the existence of our own jurisdiction de novo. Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000). Saavedra-Figueroa contends that we have jurisdiction over his petition because the BIA's June 2007 order affirmed that its August 2005 decision remains a final, appealable order of removal. The government responds that the BIA's March 2007 order ...


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