FILED

NOT FOR PUBLICATION

JAN 17 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDA PAOLA TORRES, No. 14-73512

Petitioner, Agency No. A095-758-236

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 8, 2018** Submission Withdrawn June 25, 2018 Resubmitted January 15, 2020 Pasadena, California

Before: W. FLETCHER, BYBEE ***, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** Due to the death of Judge Reinhardt, the Honorable Judge Bybee was drawn to replace him. Judge Bybee has read the briefs and reviewed the record. Brenda Torres seeks to reopen her removal proceedings on the ground that

she is now eligible for cancellation of removal under 8 U.S.C. § 1229b(b). We

review the BIA’s denial of motions to reopen for abuse of discretion and its

determination of purely legal questions de novo. Cano-Merida v. INS, 311 F.3d

960, 964 (9th Cir. 2002). We grant Torres’ petition and remand for further

proceedings.

In 2008, Torres pled guilty to California Penal Code §§ 530.5(a), 114, 472,

and 529.5(c), charges which arose from her use of a false Social Security card to

obtain employment and other documents. In January 2013, the California Superior

Court reduced Torres’ § 530.5(a) conviction from a felony to a misdemeanor. It

also permitted Torres to withdraw her guilty pleas for the remaining convictions

and dismissed the charges. Torres argues that she is now eligible for cancellation

of removal. We agree.

A vacated conviction no longer qualifies as a conviction for immigration

purposes unless vacatur was “solely for rehabilitative reasons or reasons related to

[the noncitizen’s] immigration status.” Reyes-Torres v. Holder, 645 F.3d 1073,

1077 (9th Cir. 2011) (emphasis in original). Although the state court did not

specify the code under which it acted, here the prosecution moved for withdrawal

of Torres’ plea and dismissal, in part on the ground that Torres had been

2 overcharged. Vacating the convictions, the court explained that it acted “[b]ased

on the motion of the people.” California Penal Code § 1385, which permits a

judge to dismiss an action “upon the application of the prosecuting attorney and in

furtherance of justice,” is the only procedural device under state law to fit those

circumstances.

The court vacated Torres’ conviction on the prosecution’s motion to

withdraw Torres’ plea and dismiss the charges, which was based in part on an

overcharging rationale. On this record, we conclude that vacatur was not based

solely on rehabilitation or immigration consequences, but also on some substantive

or procedural “defect” in the underlying conviction. See Reyes-Torres, 645 F.3d at

1077; see also In re Chavez-Martinez, 24 I. & N. Dec. 272, 273 (BIA 2007). This

vacates Torres’ convictions for immigration purposes, which means that she is

eligible for cancellation of removal.

We GRANT the petition for review and REMAND this case to the BIA for

further proceedings.

PETITION GRANTED.

3