Ruben Ceron v. Eric H. Holder Jr.

dissenting:

Today, the majority adopts an idiosyncratic approach to precedent to avoid following one of our en banc decisions. Although an en banc panel stated that “assault with a deadly weapon” is not a crime involving moral turpitude, see Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), and although this statement has been followed by subsequent panels, see, e.g., Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir.2012), Castrijons-Garcia v. Holder, 704 F.3d 1205, 1212 (9th Cir.2013), the majority decides it is not bound by this precedent because Navarro-Lopez was mistaken in the way it reached this conclusion. Because we are not free to cast off precedent, however mistaken, unless we correct it through en banc rehearing, see United States v. Parker, 651 F.3d 1180, 1184 (9th Cir.2011); Hart v. Massanari, *433 266 F.3d 1155, 1171 (9th Cir.2001), I respectfully dissent.

I

Ruben Cerón was convicted of assault with a deadly weapon in violation of California Penal Code section 245(a)(1). The question before us is whether this crime categorically involves moral…

Opinion by Judge GRABER; Dissent by Judge IKUTA.

OPINION

Petitioner Ruben Adolfo Cerón pleaded nolo contendere in California state court to assault with a deadly weapon, in violation of California Penal Code section 245(a)(1). The state court sentenced Petitioner to 364 days to be served in county jail, but it suspended that sentence and imposed probation instead. The Board of Immigration Appeals (“BIA”) held that Petitioner was removable pursuant to 8 U.S.C. § 1227 (a)(2)(A)® for having committed a crime involving moral turpitude for which a sentence of at least one year’s imprisonment could have been imposed. Reviewing questions of law de novo, Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir.2008), we deny the petition for review.

First, California Penal Code section 245(a)(1) is categorically a “crime involving *428 moral turpitude.” 8 U.S.C. § 1227 (a) (2) (A) (i) (I). We held long ago that assault with a deadly weapon under California Penal Code section 245 is a crime involving moral turpitude. Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir.1953) (construing an earlier, but substantially similar version of section 245), aff'd on other grounds, 347 U.S. 637 , 74 S.Ct. 822 ,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN ADOLFO CERON , aka Ruben No. 08-70836 Ceron-Casco, Petitioner, Agency No.

A073-969-493

v.

ERIC H. HOLDER, JR., Attorney OPINION General, Respondent.

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

Argued and Submitted November 8, 2012—Pasadena, California

Filed April 2, 2013

Before: Myron H. Bright,* Susan P. Graber, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Ikuta

* The Honorable Myron H. Bright, Senior Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation. CERON V . HOLDER

SUMMARY**

Immigration

The panel denied Ruben Adolfo Ceron’s petition for review of the Board of Immigration Appeals’ decision finding that his conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime involving moral turpitude (“CIMT”) for which a sentence of at least one year’s imprisonment could have been imposed.

The panel held that this court’s holding in Gonzales v. Barber,…