Arturo Franco v. Eric H. Holder Jr.

MEMORANDUM

Arturo Sinai Franco, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (BIA) order dismissing his appeal from an immigration judge’s (IJ) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand for further proceedings.

Franco pleaded guilty under section 245(a)(1) of the California Penal Code, which is a “wobbler” statute. See Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 (9th Cir.2003). We recognize that California law treats a person who pleads guilty to a wobbler as “ ‘acquiring] the status ... not then final ... of a person convicted of a felony.’ ” Id. at 844 n. 5 (quoting People v. Banks, 53 Cal.2d 370 , 1 Cal.Rptr. 669 , 348 P.2d 102, 113 (1959)).

Nevertheless, the plea under a wobbler may still result in a misdemeanor conviction under California law. For example, in this case, the state trial judge could have ultimately imposed a sentence other than imprisonment in state prison, or alternatively, could have declared Franco’s offense under section 245(a)(1) to be a misdemeanor. Either would have resulted in Franco being convicted…