                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 22 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ARTURO SINAI FRANCO,                             No. 08-75046

              Petitioner,                        Agency No. A096-811-436

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

              Respondent.



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

                       Argued and Submitted January 11, 2010
                             San Francisco, California

Before: NOONAN, HAWKINS, and M. SMITH, Circuit Judges.

       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.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       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 “‘acquir[ing] the status . . . not then final . . . of a person convicted

of a felony.’” Id. at 844 n.5 (quoting People v. Banks, 348 P.2d 102, 113 (Cal.

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 of a

misdemeanor under California law, see Cal. Penal Code § 17(b)(1), (3), possibly

making him eligible for cancellation of removal.

       In this case, however, the federal government deprived Franco of having the

trial judge make such a determination. Franco was scheduled to appear in state

court for a sentencing hearing on February 25, 2008, a little more than a month

after the entry of his guilty plea. But before Franco had the opportunity to attend

his hearing, the Department of Homeland Security (DHS) took Franco into its

custody and detained him in Arizona pending his immigration hearing. If DHS

had allowed Franco to appear at his sentencing hearing, it would have been
properly left to the trial judge to determine the nature of Franco’s conviction. Yet

DHS foreclosed any chance of that scenario from being realized.

      The government cannot have it both ways: it cannot benefit from treating a

wobbler as a felony until a judgment comes down, yet prevent a person from

qualifying as a misdemeanant under a wobbler by whisking him away before

sentencing and judgment. Because DHS deprived Franco of the opportunity to

qualify as a misdemeanant, we remand for the BIA to reconsider Franco’s

application for cancellation of removal under the presumption that Franco’s

violation of Cal. Penal Code section 245(a)(1) constitutes a misdemeanor.

      PETITION FOR REVIEW GRANTED and REMANDED.
