Argued and Submitted En Banc, San Francisco,
California: December 11, 2013.
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073-969-493.
Mario Acosta, Jr. (argued), Law Office of Mario Acosta, Jr., PLC, Los Angeles, California; and Elsa I. Martinez, Law Office of Elsa Martinez, PLC, Los Angeles, California, for Petitioner.
Bryan S. Beier (argued), Carol Federighi, and Cindy S. Ferrier, Senior Litigation Counsel, Stuart F. Delery, Assistant Attorney General, Tony West, Assistant Attorney General, and Joseph O'Connell, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Vincent J. Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc., San Diego, California; Charles Roth, National Immigrant Justice Center, Chicago, Illinois, and Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington; and Thomas E. Gorman, Keker & Van Nest LLP, San Francisco, California, for Amici Curiae.
Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard A. Paez, Richard R. Clifton, Carlos T. Bea, N. Randy Smith, Mary H. Murguia, and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Graber; Dissent by Judge Bea.
GRABER, Circuit Judge:
Petitioner Ruben Adolfo Ceron seeks review of the Board of Immigration Appeals' (" BIA" ) decision that his conviction for assault with a deadly weapon, in violation of California Penal Code section 245(a)(1), is a removable offense under 8 U.S.C. § 1227(a)(2)(A)(i) because it is (I) " a crime involving moral turpitude" (II) " for which a sentence of one year or longer may be imposed." Reviewing de novo whether Petitioner's conviction meets those requirements, Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008); Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003), we grant the petition and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is a native and citizen of El Salvador and a lawful permanent resident of the United States. In 2006, he pleaded nolo contendere in California state court to having violated California Penal Code section 245(a)(1), which proscribes " an assault upon the person of another with a deadly weapon or instrument other than a firearm."  The state court suspended the imposition of a sentence and imposed, instead, 36 months of probation. As a term and condition of probation, the state court prescribed a 364-day jail term and gave Petitioner credit for the 364 days that he actually served in the county jail.
The federal government issued Petitioner a notice to appear, alleging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) because he had been convicted of a crime involving moral turpitude for which a sentence of one year or longer could have been imposed. The immigration judge sustained the charge of removability and ordered Petitioner removed.
The BIA issued its own decision and dismissed Petitioner's appeal. The BIA first held that, whether Petitioner's conviction was for a misdemeanor or for a felony, the state statute permits a sentence of imprisonment of at least one year. The BIA next held that a conviction for an assault with a deadly weapon under California Penal Code section 245(a)(1) categorically constitutes a crime involving moral turpitude.
Petitioner timely petitioned for review. A three-judge panel denied the petition. Ceron v. Holder, 712 F.3d 426 (9th Cir. 2013). We then granted rehearing en banc. 730 F.3d 1133 (9th Cir. 2013).
Title 8 U.S.C. § 1227(a)(2)(A)(i), titled " Crimes of moral turpitude," provides:
Any alien who--
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
Petitioner argues that his conviction met neither statutory requirement. We first address whether his conviction was for " a crime for which a sentence of one year or longer may be imposed." Id. § 1227(a)(2)(A)(i)(II). We then address whether California Penal Code section 245(a)(1) categorically defines " a crime involving moral turpitude." Id. § 1227(a)(2)(A)(i)(l)
A. " Sentence of One Year or Longer "
California Penal Code section 245(a)(1) directs that Petitioner " shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year." Consulting the statutory text, the state court could have imposed a sentence of up to four years in state prison, which plainly is " a sentence of one year or longer." 8 U.S.C. § 1227(a)(2)(A)(i)(II). In California, however, the analysis is not quite that simple.
Statutes such as section 245(a)(1) are known in California as " wobblers" because the state court can treat a conviction under section 245(a)(1) either as a felony or as a misdemeanor. See, e.g., Ewing v. California, 538 U.S. 11, 16-17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (describing " wobblers" ). If the conviction is a felony, then the " state prison" provision applies and the maximum penalty is four years in state prison. Ceron, 712 F.3d at 430; Cal. Penal Code § 17(a). But if the conviction is a misdemeanor, then the " county jail" provision applies and the maximum penalty is one year in county jail. Ceron, 712 F.3d at 430; Cal. Penal Code § 17(a).
For our purposes, it does not matter whether Petitioner's conviction was a felony or a misdemeanor. If it was a felony, then the maximum penalty was imprisonment for four years in the state prison. If it was a misdemeanor, then the maximum penalty was incarceration for one year in the county jail. In either event--four years or one year--the state court could have imposed " a sentence of one year or longer." 8 U.S.C. § 1227(a)(2)(A)(i)(II).
Petitioner's conviction meets the federal statutory requirement either way. In summary, the BIA correctly held that Petitioner's conviction was for " a crime for which a sentence of ...