Martinez-Jaracuaro

MEMORANDUM ***

Reinaldo Martinez-Jaracuaro, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals, which denied his request to stay deportation proceedings pending consideration of his motion to re-serve and ordered him deported. As the parties are familiar with the facts and additional arguments, they are not repeated here.

In February 1997, Martinez-Jaracuaro pled nolo contendere to the offense of assault by force to commit bodily injury in violation of California Penal Code *26 § 245(a)(1). Martinez-Jaracuaro’s offense was punishable as either a felony or a misdemeanor; however, because the state trial judge never declared that he was convicted of a misdemeanor, he was convicted of a felony. See People v. Bozigian, 270 Cal.App.2d 373, 379 , 75 Cal.Rptr. 876 (1969) (“Unless and until a misdemeanor sentence is imposed, a conviction for an offense alternatively punishable as a misdemeanor or a felony, remains a felony for all purposes.” (citation omitted)). Accordingly, this court dismisses Martinez-Jaracuaro’s petition for lack of jurisdiction because he was convicted of an aggravated felony. See 8 U.S.C. § 1252 (a)(2)(C)…