Brenda Torres v. William Barr

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NOT FOR PUBLICATION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Submission Withdrawn June 25, 2018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
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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.
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